Advisory Opinion No. 96-62

Re: Michael F. Smith, Chairman


An appointed member of the Jamestown Planning Board, serving in the position of Chairperson, requests advice as to whether he may participate in matters where a friend and attorney who has represented the Chairperson in the past appears before the Planning Board as the attorney for applicants.


Provided the petitioner, an appointed member of the Jamestown Planning Board, concludes he can fairly and impartially fulfill his responsibilities, he may participate in matters where a friend and attorney who has represented the petitioner in the past now appears before the Planning Board as the attorney for applicants. This opinion is based on there being no current business-associate relationship between the petitioner and the attorney nor any anticipated relationship in the near future. Since no financial nexus exists between the petitioner and the attorney, they do not fall within the "business associate" definition provided in the Code. Additionally, no inherent conflicts are present based on a solely social relationship.


1. Facts

The petitioner, Michael F. Smith, is Chairman of the Jamestown Planning Board. Mr. John A. Murphy is an attorney who represents persons who have business pending before the Planning Board. Mr. Smith is a friend of Mr. Murphy and has in the past engaged the legal services of Mr. Murphy.

Mr. James Hyman requests an advisory opinion on behalf of Mr. Smith, that given their past relationship, whether Mr. Smith may participate in matters where Mr. Murphy appears before the Planning Board on behalf of other clients.

2. Analysis

The Rhode Island Code of Ethics provides that a public official shall not have an interest that is in substantial conflict with the proper discharge of his duties in the public interest. A substantial conflict exists if a public official has reason to believe or expect that he or a business associate will derive a direct monetary benefit as a result of the official's actions. R.I. Gen. Laws § 36-14-5(a) & § 36-14-7(a). The Code also prohibits a public official from using his public office to obtain financial gain for himself or a business associate See R.I. Gen. Laws § 36-14-5(d). Pursuant to R.I. Gen. Laws § 36-14-2(8), an individual will be a "business associate" of a public official if the official and that individual are "joined together" to "achieve a common financial objective." In this case, the petitioner states that he and Mr. Murphy have, in the past, had an attorney-client relationship.

The Commission has previously considered advisory opinions where an attorney or client is a public official and the client or attorney appears before the public official. Where an ongoing relationship exists, the Commission has found that the public official should recuse himself whenever his attorney or client appears before him in his official capacity. See A.O. 91-50 (Cumberland Town Council member must recuse herself in matters presented by her attorney while she has engaged the attorney to represent her in an unrelated legal matter.); See also A.O. 92-45 & A.O. 95-61 (concluding that the relationship between an individual and an attorney who actively represents that individual is one of "business associate"). And see A.O. 94-10 & A.O. 89-54 (attorneys who are public officials cannot participate in matter concerning private client appearing before him in his official capacity). However, the Commission has found that where an attorney/client relationship has ceased, the same conflict issues do not arise. See A.O. 88-48 (council member could participate when his former attorney appears before him given that the attorney withdrew from representing the Council member). Additionally, in A.O. 89-20, the Commission found no violations would result for a Newport City Council member (and attorney) if he participated in a matter where he represented the property owner in an unrelated matter and the representation ceased prior to his election to City Council.

Additionally, the Commission has concluded that a social relationship between a public official and a person appearing before him does not, in and of itself, cause impermissible conflicts within the meaning of the Code. See A.O. 92-72 (Middletown Zoning Board member could participate in matter where social relationship but no business relationship exists with applicant provided that the Council member could act in an impartial manner concerning that person's application).

Here, the petitioner is not currently being represented by Mr. Murphy. Additionally, if future representation by Mr. Murphy is not anticipated, no financial nexus exists. Accordingly, we conclude that Mr. Smith may participate in matters in which Mr. Murphy is involved which may come before the Jamestown Planning Board. However, if the petitioner engages Mr. Murphy's legal services or anticipates future representation, the petitioner should either advise the Planning Board in writing, of the existence and the nature of his interest and recuse himself from participating in consideration of matters where Mr. Murphy appears before him in accordance with R.I. Gen. Laws § 36-14-6 or seek further guidance from the Ethics Commission.

Additionally, if the petitioner feels that he cannot act in an impartial manner when Mr. Murphy appears before him, he should exercise the notice and recusal sections of the Code.

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business associate