Advisory Opinion No. 98-25

Re: James W. Farley

QUESTION PRESENTED

The Petitioner, a Bristol Planning Board member, a municipal appointed official, requests an advisory opinion as to whether he may participate in a matter in which Attorney Anthony DeSisto represents an applicant before that Board given that a) the Petitioner retained Mr. DeSisto as his own attorney on an unrelated matter five years ago; and b) his daughter has retained a member of Mr. DeSisto's law firm, Mark DeSisto, to represent her in an unrelated civil matter.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner's past relationship with Mr. DeSisto and his daughter's current relationship with Mr. DeSisto's firm does not prohibit him from participating in a matter in which Attorney Anthony DeSisto represents an applicant before the Bristol Planning Board . Under the Code of Ethics, the Petitioner, a Bristol Planning Board member, 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 his duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). The Code of Ethics, R.I. Gen. Laws § 36-14-5(d), also prohibits the Petitioner from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate, or a member of his family. An individual is a "business associate" of a public official if the official and that individual are "joined together" to "achieve a common financial objective." See R.I. Gen. Laws § 36-14-2(8).

Past Commission advisory opinions recognize that an ongoing attorney-client relationship, in certain circumstances, 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.

After considering the relevant provisions of the Code and past advisory opinions, we conclude that the Petitioner's present and past relationship with Attorney Anthony DeSisto and his law firm do not implicate the prohibitions set forth in R.I. Gen. Laws § §36-14-5(a) and 36-14-5(d). First, the Petitioner retained Attorney Anthony DeSisto five years ago but does not maintain an ongoing attorney-client relationship with him. Nor is there any indication that the Petitioner has present plans to reestablish a business relationship with Mr. DeSisto. Also, the Petitioner's daughter's relationship with the law firm does not create a conflict of interest for the Petitioner requiring recusal. The Petitioner's daughter, not the Petitioner, has a business relationship with the firm. Any relationship the Petitioner has with this firm, through his daughter, is too remote to implicate the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a), R.I. Gen. Laws § 36-14-5(d), and 36-14-5(f). See A.O. 97-36 (advising a member of the Narragansett Town Council that he could participate in matters concerning the South County Museum notwithstanding the fact that his wife served on the Board of that museum since the museum and its principals were the spouse's, and not the Petitioner's, business associates).

Code Citations:

36-14-2(8)

36-14-5(a)

36-14-5(d)

36-14-5(f)

Related Advisory Opinions:

97-36

96-62

94-10

92-45

91-50

89-54

Keywords:

Business associate

Family: Business interest

Family: Financial benefit

Nepotism