Advisory Opinion No. 98-27

Re: Donald J. Packer, Esq.

QUESTION PRESENTED

The Petitioner, the New Shoreham Town Solicitor, a municipal appointed position, requests an advisory opinion as to whether 1) he may act as legal advisor to the Zoning Board on an application given that the applicant has filed a complaint against the Petitioner with the Ethics Commission, 2) his law partner may act as legal advisor if the Petitioner is prohibited from participation, and 3) either the Petitioner or his law partner may advise the Board on the application should the complaint be dismissed.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the New Shoreham Town Solicitor, a municipal appointed position, may act as legal advisor to the Zoning Board on an application, notwithstanding the fact that the applicant has filed a complaint against the Petitioner with the Rhode Island Ethics Commission.

Under the Code of Ethics, a public official may not have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity, or incur any obligation, which is in substantial conflict with the proper discharge of his or her duties or employment in the public interest. A public official has a substantial conflict of interest if he or she has reason to believe or expect that he or she will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, Commission Regulation 36-14-6001 states that a public official has reason to believe or expect a conflict of interest exists when it is reasonably foreseeable.

The Petitioner here has no reason to believe or expect that he will derive a direct monetary benefit (or suffer a loss) by advising the Board on the application. The possibility that the Petitioner's legal advice to the Zoning Board could impact him financially is too remote to constitute a potential conflict of interest. Therefore, the Code of Ethics does not prohibit the Petitioner or his law partners from acting as legal advisor to the Zoning Board on the pending application while the complaint is pending against the Petitioner. This matter is distinguishable from previous opinions where the Commission found that a public official should not take certain actions because he or she was a party or attorney in a pending suit. See A.O. 94-26 (Zoning Board member should not participate in consideration of application since she was defendant in a slander suit against the applicant), and A.O. 95-61 (Councilor should not participate in matters involving the Lincoln Greyhound Park since he was representing a client in a suit against the Park). Here, the complainant is not a party to the matter pending before the Ethics Commission. Whether and how the Ethics Commission proceeds on the complaint is not within the control of the complainant and, therefore, the Petitioner's financial interests cannot be affected by any actions of the complainant.

Finally, whether or not the Petitioner believes that his participation in the pending application amounts to an appearance of impropriety is not a matter for the Ethics Commission to decide. When enacting the Code of Ethics, the General Assembly included as one of its legislative purposes the elimination of appearances of impropriety. The legislature did not, however, make the appearance of impropriety a violation of the law. Therefore, while this Commission can recommend to the Petitioner that he should publicly disclose the nature of his relationship with the applicant, and the basis upon which he intends to participate or not, whether an act or failure to act creates an appearance of impropriety must be determined by public officials themselves, by public bodies, and, ultimately, by the public at large.

Code Citations:

36-14-5(a)

36-14-6

36-14-7(a)

Commission Regulation 36-14-6001

Related Advisory Opinions:

95-61

94-26

Keywords:

Financial interest

Litigation