Advisory Opinion No. 97-132

Re: Kenneth R. Tremblay, Esq.

A. QUESTION PRESENTED

The Petitioner, Tiverton Town Solicitor, a municipal appointed position, requests an advisory opinion as to whether he may represent the Town Council in a zoning matter given that one of the Town Councilors is a petitioner in the zoning matter and that the Solicitor represents the Town Councilor's spouse in a personal injury suit.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Tiverton Town Solicitor, a municipal appointed position, may not represent the Town Council in a zoning matter where he is also representing the spouse of a Town Councilor in a personal injury suit and that Town Councilor is a petitioner in the zoning matter. Although, the Petitioner represents that the spouse does not have a financial interest in the property being rezoned, there is a reasonable likelihood that one spouse would be affected materially by a zoning matter that impacts the real property interests of the other. Additionally, there is a reasonable likelihood that the husband/Town Councilor would be affected materially by the ongoing personal injury litigation concerning his wife. Since the Petitioner would be participating in activities that affect the Town Councilor and his wife in both his public and private capacities, he should recuse himself from participating in the matter before the Town Council. The Petitioner should file a statement of conflict of interest with the Town Council and with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

C. DISCUSSION

1. Facts

The Petitioner is the Town Solicitor for the Town of Tiverton. There is presently an amendment to the zoning ordinance before the Town Council to allow manufactured homes elderly communities in a residential zone. The Town Council expects to hear this matter on November 24, 1997. A group of individuals whose property would be directly affected by the ordinance proposed the change. A Council member, Mark DeMello, is part of this group. He has recused himself from discussion of the zoning matter as a member of Town Council. The Petitioner would ordinarily advise the Town Council on this matter in his role as Town Solicitor.

The Petitioner, as a private attorney, is representing Council member DeMello's spouse in a personal injury action. The Petitioner represents that his client, Mrs. DeMello, does not have an interest in the real property that is the subject of the zoning matter. The Petitioner requests an advisory opinion as to whether he may continue to represent the Town Council in the zoning matter given his client's spouse's interest in the matter.

2. Analysis

The Code of Ethics provides that the Petitioner shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction which is in substantial conflict with the proper discharge of his duties in the public interest. A substantial conflict of interest occurs if the Petitioner has reason to believe or expect that he or any family member or business associate, or any business by which he is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, the Code provides that the Petitioner shall not accept other employment which will either impair his independence of judgment as to her official duties or induce him to disclose confidential information acquired by him in the course of and by reason of his official duties. R.I. Gen. Laws § 36-14-5(b). At issue in this matter is whether the Petitioner can continue to advise the Town Council in his capacity as Town Solicitor given his attorney/client relationship with the spouse of one of the zoning proponents.

The Commission has generally ruled that a public official may not participate in his/her public capacity in matters affecting his/her spouse. Similarly, the Commission has found that a public official may not participate in matters concerning his/her spouse's employer. See e.g., A.O. 96-7. Conversely, the Commission has concluded that a public official may participate in matters that would not have an effect on his/her spouse. See A.O. 94-31 (concluding that a public official could act as hearing officer in a matter concerning an independent attorney sharing office space with her husband since he is not a business associate of her husband); see also A.O. 93-85 (concluding that a Town Councilor could participate in a grievance filed by the Fraternal Order of Police while her husband was a social member of F.O.P., since it did not affect him). The Commission also has found that a Town Councilor could vote on an appropriation of money to a Museum although his wife served on its Board since the Museum had a "business association" with the wife, not the Town Councilor. A.O. 97-36.

The Commission has also concluded that public officials cannot participate in matters affecting persons and entities with which they have business associations, including clients. See A.O. 95-76 (concluding that a Lincoln Town Councilor could not vote on matters affecting the Lincoln Greyhound Park while he is representing an estate in a suit against the Park); see also A.O.96-76 (concluding that a public official must recuse in matters where his law firm or its clients appear before him).

Finally, the Commission previously opined that a Town Councilor who was also an attorney could not participate as a Town Councilor in a liquor license application submitted by his client's spouse given that he was representing his client in a marital dispute with the license applicant, see A.O. 95-17, and that a Newport Zoning Board of Review member must recuse where clients of her spouse's firm appear before her, see A.O. 82-54

Here, the Petitioner is representing the Town Councilor's wife in a personal injury action. There is a reasonable likelihood that the Town Councilor would be affected materially by any resolution or other developments relating to his wife's personal injury suit. Additionally, although the Petitioner's client does not currently have an interest in property affected by the zoning proposal, it is reasonably foreseeable that his client would be affected materially by matters relating to a financial interest of her husband. Given that the Petitioner's independence of judgment as to this zoning matter could be affected by his private representation of the spouse of one of the applicants and that his participation in advising the Town Council could be reasonably expected to result in a financial gain or loss to his client's spouse, he should recuse himself from participation in this matter and file a statement of conflict of interest with the Town Council and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-7(b)

Related Advisory Opinions:

97-36

96-7

96-76

95-17

95-61

94-31

93-85

92-54

Keywords:

Business interest

Client's interest