Advisory Opinion No. 98-117

Re: Kathleen M. Staley

QUESTION PRESENTED

The Petitioner, an Exeter Town Councilor, a municipal elected position, requests an advisory opinion as to whether she may participate in a zoning matter where she has previously done private sector work for the attorney representing the applicant and will likely do similar work for the attorney in the future.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, an Exeter Town Councilor, a municipal elected position, may not participate in a zoning matter where she has had and will likely have an employment relationship with an attorney appearing before her on a zoning matter. The Petitioner represents that she has worked doing zoning radius maps for the attorney in the past and likely will do work for him in the future. Given the nature of the Petitioner's relationship with the attorney, she should recuse on matters where he appears before her in accordance with Section 6 of the Code.

Section 5(a) of the Code provides that a public official may not participate in matters where he/she has a substantial conflict with his/her public duties. A substantial conflict of interest occurs if the public official has reason to believe or expect that he or she or any family member or business associate, or any business by which he or she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a).

The Commission has found that where there is an ongoing business relationship, which may include matters where the public official anticipates utilizing the person's business in the future even though no matters are currently pending, a public official must recuse. In Advisory Opinion 94-60, the Commission concluded that a Planning Commission member should not participate in a subdivision matter where an engineer appeared before him. The opinion was based on the member's relationship with the engineer in that he had engaged in numerous business relationships with the engineer in the past, and although there was no current project, the member anticipated that they would engage in business projects within the immediate future and fully expected to continue their mutual business relationship. See also A.O. 97-103 (concluding that a Westerly Town Councilor's close and dependent business relationship with a loan officer who had been vocal about an issue together with the financial impact that such an ordinance may have on the loan officer would result in a substantial conflict of interest with his duties as a member of Town Council); and, A.O. 96-100 (finding that a Board of Registration for Professional Engineers member should not participate in a matter where he had done work for a party appearing before him since his bill remain unpaid and the on-going business relationship between the Petitioner and the firm for which he performed services would create a substantial conflict).

This matter is similar to the advisory opinions summarized above because the Petitioner has had a business relationship on a recurring basis with the attorney and a future relationship is anticipated. The Petitioner would have a substantial conflict of interest if she participated in the pending matter given that it is reasonably foreseeable that the attorney will receive a monetary gain through his representation of the applicant. Given the ongoing relationship with the attorney, the Petitioner should recuse on matters when the attorney appears before her. Such recusal must be in accordance with Section 6 of the Code which requires a conflict of interest statement to be filed with the Town Council and with the Ethics Commission.

Code Citations:

36-14-5(a)

36-14-7(a)

Related Advisory Opinions:

97-7

97-13

97-103

97-112

96-100

94-60

Keywords:

Private employment