Advisory Opinion No. 96-68

Re: Michael F. Smith


Whether Michael F. Smith, the Chair of the Jamestown Planning Commission, a municipal appointed official, may participate in matters where an attorney who had requested an advisory opinion from this Commission on his behalf appears before the Planning Board as an attorney.


Under the Code of Ethics, the Petitioner, a municipal appointed official may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of their duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). Pursuant to R.I. Gen. Laws § 36-14-5(d), the Petitioner is also prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself or a business associate. An individual will be a "business associate" of a public official if the official and that individual are "jointed together" to "achieve a common financial objective." In past advisory opinions, the Commission has recognized that an ongoing attorney-client relationship creates a business association which requires a public official to recuse himself or herself whenever the official's attorney appears before him or her in an official capacity. See A.O. 91-50 (concluding that a member of the Cumberland Town Council would violate the Code of Ethics if she participated or voted in any matter presented by her attorney while she simultaneously engaged the attorney to represent her in an unrelated legal matter in the Superior Court); A.O. 92-45 (recognizing, in an opinion issued to a member of the Portsmouth Town Council addressing whether he may participate in matters concerning his attorney, that the "relationship between an individual and an attorney who actively represents that individual is one of 'business associate' under the Code of Ethics."). See also A.O. 94-10 and A.O. 89-54.

Here, the Petitioner retained James Hyman, the attorney at issue, solely to request an opinion from the Commission as to whether he must recuse himself when another attorney, who had represented the Petitioner in the past, appears before the Planning Board. On May 27, 1996, the Commission voted to issue an advisory opinion to Mr. Hyman, on behalf of the Petitioner, which essentially permitted him to participate in matters which his past attorney appears since there was no current business relationship between the Petitioner and his former attorney.

After considering the relevant provisions of the Code, the previous advisory opinions, and the fact that the Petitioner has terminated his attorney-client relationship with Mr. Hyman, we conclude (for essentially the same reasons as specified in the advisory opinion issued to Mr. Hyman on the Petitioner's behalf) that the Code of Ethics does not prohibit the Petitioner from participating in matters in which Mr. Hyman appears on behalf of other clients. However, if the Petitioner retains or plans to retain Mr. Hyman in the future, he should advise the Planning Board in writing of the existence and the nature of his interest and recuse himself from participating in consideration of matters in accordance with R.I. Gen. Laws § 36-14-6.

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business associate