Advisory Opinion No. 98-56

Re: Stetson W. Eddy, Secretary

A. QUESTIONS PRESENTED

The Petitioner, a Trustee and the Secretary of the Little Compton Agricultural Conservancy Trust (Trust), a municipal appointed official, requests an advisory opinion as to whether 1) he may participate in the Trust's consideration of an application for the transfer of development rights for a tract of land approximately 223 acres where he owns property that abuts the tract at issue; and 2) he may provide pro bono legal services on behalf of the Trust to effectuate the transfer of property or development rights to property donated by one of his clients if he recuses himself from the Trust's consideration of whether to accept the donation.

B. SUMMARY

Question 1: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the Petitioner from participating in the Trust's consideration of an application to transfer certain development rights of a tract of land approximately 223 acres where he owns property abutting the property at issue. In past advisory opinions, we have advised public officials that they may not participate in matters involving property if they are abutters to the property under consideration since it is likely that their property would be impacted financially by the matter under review. Here, we find that the matter under consideration, whether to accept the transfer of the development rights of a large parcel of land that abuts the Petitioner's property, likely would impact the value of the Petitioner's property. As such, his participation is prohibited by R.I. Gen. Laws § 36-14-5(a).

Question 2: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner from performing pro bono legal services for the Trust after it votes to accept a donation of property from a client of the Petitioner if he recuses himself from the vote to accept the donation. Since the Petitioner will recuse himself from the vote regarding whether to accept the donation, he is not participating in any matter involving his client/business associate that would trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(f). Also, the provisions of Commission Regulation 5006, which prohibit a public official from accepting employment from his own board, are not applicable here since the Petitioner will be providing the services pro bono.

C. DISCUSSION

1. Facts

a. Frenning Application

The Petitioner is a Trustee as well as the Secretary of the Little Compton Agricultural Conservancy Trust (Trust), a municipal agency created to acquire an interest or development rights to agricultural property within the Town for the purposes of preserving open spaces and obtaining land for future public recreational facilities and use. The Petitioner also is an attorney practicing in Tiverton, Rhode Island. Previously, the Commission advised the Petitioner that he should notify the Trust and recuse himself from any matters involving the interest of his private legal clients. (In that opinion, the Commission concluded that, since the Petitioner had a private interest in matters involving his clients, he could not function without impaired independence of judgment. See A.O. 94-10.)

In 1991, Blanche B. Frenning, who is now deceased, filed an application to transfer development rights to a tract of land approximately 223 acres, depicted as Lot 40 on Plat 20 of the Little Compton Tax Map. The Petitioner owns a wood lot adjacent to the main section of the Frenning parcel, depicted as Lot 37-3 on the Tax Map. The Petitioner represents that, at a future date, he may donate this lot to the Sakonnet Preservation Association, a local private land trust, or the Agricultural Conservancy Trust. (The Petitioner also previously owned Lot 37-2. In 1985, he donated this property to the Sakonnet Preservation Association.)

Recently, the Petitioner discussed the proposed transfer with Mrs. Frenning's two daughters. The Petitioner represents that at this time he is unsure whether the daughters will pursue the application to transfer development rights. The Petitioner also indicates that, if the daughters decide to go forward with the application, they may wish to exclude certain land from the conveyance of development rights, which may include property contiguous with Lot 37-3.

b. Clients Donating Property

Since the formation of the Trust, some of the Petitioner's clients have donated property or development rights to the Trust. When this type of situation has arisen, the Petitioner has recused himself from the Trust's consideration of whether to accept the donation. However, once the Trust has voted to accept a donation, the Petitioner has provided pro bono legal services to the Trust to effectuate the transfer. This work includes: preparing a deed of conveyance; completing the necessary sections of a Form 8283 (Non-Cash Charitable Contributions); recording the documents of conveyance; preparing a thank-you notice to be sent to the local newspaper; and forwarding a donation acknowledgement letter to the donor.

2. Analysis

Under the Code of Ethics, a public 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). An official will have an interest in substantial conflict with his official duties if it is likely that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, a family member or a business associate. See R.I. Gen. Laws § 36-14-7(a). Also, a public official may not use his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, a family member or a business associate. Section 5(f) of the Code also prohibits a business associate of a public official from representing himself before the official's agency unless (a) the business associate notifies the official's agency of the nature of their relationship; and b) the official recuses himself from voting on or otherwise participating in the agency's consideration of the matter at issue. R.I. Gen. Laws § 36-14-5(f). Finally, Commission Regulation 5006 prohibits a public official from accepting an appointment from his agency to any position which carries with it any financial benefit or remuneration, until the expiration of one year after termination of his membership with such agency.

a. Question 1

In past advisory opinions, the Commission has found substantial conflicts requiring recusal to exist in situations where the official is an abutter to the applicant, normally defined as residing within 200' of the property at issue, since it was likely that the matter would impact the official's financial interest in the property. See, e.g., A.O. 95-27 (concluding that, because of his status as an abutting property owner, a member of a Zoning Board should recuse himself from consideration of a petition for a zoning change of parcel of land since his personal vested property rights could be affected by the decision); A.O. 90-85 (concluding that a member of the East Greenwich Town Council should not participate in a matter involving a subdivision of property since her husband had an interest in real estate contiguous to the parcel under consideration); A.O. 90-34 (opining that a member of the Conservation Commission should not participate in a proceeding regarding a request for a zone change of property abutting the Kickemuit River since she owned investment property located within 200' of the property); A.O. 97-63 (finding that an Exeter Planning Board Member should not participate in matters involving a proposed combined preliminary and final plan for the development of a subdivision given that he resides within 1,000' of the development).

In situations where the official or the official's family member owns property near but not abutting the subject property of the application or petition, the Commission also has required recusal if the property of the official or family member would be affected financially by the application or petition. See A.O. 94-42 (advising a member of the Bristol Planning Board to recuse himself from a petition for a zoning change where his daughter owned a condominium unit near but not abutting the subject property that would be impacted financially by the zone change) and A.O. 97-76 (finding that a Coventry Planning Commission member should not participate in decisions regarding a proposed subdivision in the Town given that her brother owns land abutting the project). However, the Commission has not advised officials to recuse if there is no evidence that the official's or family member's property would be impacted financially by the decision. C.f. A.O. 96-63 (concluding that a member of the North Smithfield Town Council, technically an abutter, could participate in a decision regarding the removal of a stipulation on a lot within the subdivision that was more than 200' from his property since there was no evidence that the Petitioner's property would be impacted financially by the decision).

Here, the Petitioner inquires as to whether he may participate in the review of an application to donate certain of the development rights to a large tract of land abutting this property. After considering the relevant provisions of the Code and the past advisory opinions, we conclude that the Code of Ethics prohibits the Petitioner from participating in the review of the application at issue. This decision is based on the fact that the Petitioner is a direct abutter of the property at issue. As such, any decision regarding whether to accept the transfer of all or certain of the development rights on the abutting property likely will affect the value of the Petitioner's property, thereby triggering the prohibitions set forth in R.I. Gen. Laws § 36-14-5(a). Accordingly, as to all matters related to this pending application, the Petitioner should follow the notice and recusal provisions set forth in R.I. Gen. Laws § 36-14-6.

b. Question 2

The Petitioner also inquires as to whether he may provide pro bono legal services to the Trust to effectuate a transfer of property or development rights of property donated by one of his clients if he recuses himself from the Trust's consideration and vote of whether to accept the donation. Previously, the Commission has found that an ongoing attorney-client relationship, in certain circumstances, creates a business association that triggers the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(f). The existence of the relationship requires a public official to recuse from participation when the interests of the client are before him in an official capacity. See A.O. 91-50 and A.O. 92-45.

Here, it is our opinion that the Code of Ethics would not prohibit the Petitioner from providing the pro bono legal services to effectuate the transfer. Although we have recognized that an ongoing relationship between an attorney and client constitutes a business association that would require the Petitioner to recuse himself from the Trust's consideration of whether to accept the donation, the Petitioner is not precluded from providing follow-up services to effectuate the transfer. After the vote to accept the transfer, the Petitioner and his client no longer have an in interest in the property. Therefore, by providing legal services on behalf of the Trust at this juncture, the Petitioner is not acting where he has an interest in substantial conflict or improperly using his position to benefit a business associate. However, the Petitioner should not provide such services prior to the vote, since up to that point he would be acting in matters affecting his client. See R.I. Gen. Laws §36-14-5(a), 5(b), 5(f). This prohibition also applies to other members of the Petitioner’s law firm.

Also, the provisions of Commission Regulation 5006, which prohibit a public official from accepting employment from his own board, are not applicable since the Petitioner will not receive any financial benefit or remuneration for his services. See e.g., A.O. 97-41 (concluding that a member of the Warwick School Committee may apply for a coaching position in the Warwick School Department since he did not intend to accept compensation, benefits, or other financial remuneration for the position); A.O. 97-27 (opining that the Rhode Island Senate Committee on Corporations would not violate the Code of Ethics if it utilized the services a former member of the Senate where the former member would a) waive the per diem compensation ordinarily paid to committee clerks; b) receive no other compensation or remuneration from any source for the performance of such services until at least one year from the date of his resignation; c) receive no retroactive compensation for services provided; and d) receive no other benefit as a result of his service with the Committee, such as pension or longevity accrual, health benefits or pension benefits).

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-5(f)

36-14-6

36-14-7(a)

Related Advisory Opinions:

98-30

97-41

97-27

96-63

95-27

94-42

92-42

91-50

90-85

90-34

Keywords:

Business associate

Financial interest

Private employment

Property interest