Advisory Opinion No. 98-30

Re: Patrick A. Guida, Esq.

QUESTION PRESENTED

The Petitioner, a Barrington School Committee member, a municipal elected official, asks whether he may vote on the selection of a construction manager for renovations at Barrington High School where one of the three candidates considered for the position by the High School Facilities Committee, but not recommended for hire, is a client of the Petitioner's law firm.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Barrington School Committee member, a municipal elected official, may participate in the vote regarding the selection of a construction manager recommended by the High School Facilities Committee (Facilities Committee) provided that the vote does not affect the financial interests of his law firm's client. The Code of Ethics prohibits a public official from taking any official action that is likely to have a direct financial or monetary impact on, among others, business associates, or from having an interest 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), 36-14-5(d) and 36-14-7(a). A substantial conflict of interest occurs if the Petitioner has reason to believe or expect that a business associate will derive a direct monetary gain by reason of his official activity. See R.I. Gen. Laws §§ 36-14-5(a) and 36-14-7(a). In past advisory opinions, the Commission has recognized that an ongoing attorney-client relationship, in certain circumstances, creates a business association that requires a public official to recuse him or herself when the interests of the client or the attorney may be affected by his or her official action. See A.O. 91-50 and A.O. 92-45.

Here, the Petitioner will not have an interest in substantial conflict if he has no reason to believe or expect that his firm's client will receive any financial benefit by virtue of his vote. See A.O. 97-86 (advising a member of the Newport School Committee that he could participate in the appointment of a candidate to a Teacher's Aide Position notwithstanding the fact this his wife had been an applicant for the position since he had no reason to believe or expect that his wife would receive any financial benefit because of his vote). However, if it is likely that his vote would impact the interests of the client, the Petitioner should follow the notice and recusal provisions set forth in R.I. Gen. Laws § 36-14-6. For example, because the client of the Petitioner’s law firm would be a possible substitute choice if the School Committee voted not to approve the candidate recommended by the Facilities Committee, and if the Petitioner was a likely vote against the recommended candidate, the Petitioner would have an interest in the vote that would trigger the prohibitions set forth in R.I. Gen. Laws § 36-14-5(a) and 5(d). Conversely, because the current recommended candidate has no relationship with the Petitioner, clearly he could vote to approve that candidate’s selection.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-6

Related Advisory Opinions:

97-86

96-110

92-45

91-50

Keywords:

Business associate

Contracts

Prospective employment