Advisory Opinion No. 98-141

Re: Robert P. Rose

QUESTION PRESENTED

The Petitioner, a Westerly Zoning Board member, a municipal appointed position, who is privately employed as an engineer, requests an advisory opinion as to whether he may participate in the Zoning Board’s consideration of matters involving architectural and engineering firms with which he has worked in the past.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Westerly Zoning Board member, a municipal appointed position, who is privately employed as an engineer, may participate in the Zoning Board’s consideration of matters involving architectural and engineering firms with which he has worked in the past provided, however, that no business association currently exists between the parties, nor is it foreseeable that they would engage in business projects within the near future.

Under the Code of Ethics, the Petitioner 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 and employment in the public interest. See R.I. Gen. Laws §§ 36-14-5(a) and 7(a). He also is prohibited 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 any business by which he is employed or represents. See R.I. Gen. Laws § 36-14-5(d). (A “business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective.” See R.I. Gen. Laws § 36-14-2(3).) Section 5(b) of the Code prohibits him from accepting other employment which would impair his independence of judgment or require him to disclose confidential information acquired by him in the course of his official duties. Finally, section 5(f) of the Code requires the Petitioner to recuse himself from voting or participating in consideration and disposition of a matter involving a business associate.

In past advisory opinions, the Commission has required public officials to recuse themselves from consideration of a matter if the official has an ongoing or anticipated business relationship with an individual or entity appearing before his or her public body. See e.g., A.O. 94-60 (concluding that a member of the North Kingstown Planning Commission could not participate in a subdivisions proposal submitted by an engineer where the member planned to engage in business projects within the immediate future with the interested engineer). See also A.O. 96-100. However, the Commission has permitted public officials to participate in matters involving a former associate if it is clear that the business relationship has terminated and that the parties do not anticipate any future business dealings. See A.O. 96-30 (concluding that a City Councilor could participate in a matter involving an individual he represented more than five years ago as an attorney given that there was neither an ongoing relationship with the individual nor any specific plans to represent the party in the future). See also A.O. 96-62 and 96-68.

Based upon previous advisory opinions, the Commission concludes that the Petitioner may participate in the Zoning Board’s consideration of matters where he has had a business relationship with the firm/individual appearing before the Board, provided that the relationship has terminated. The Petitioner should recuse himself from consideration of any matters involving former business associates where there is an expectation of future business dealings between the parties. See R.I. Gen. Laws § 36-14-5(a),(b),(d), and (f). Notice of recusal should be filed with both the Town of Westerly and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-(6).

Code Citations:

36-14-2(3)
36-14-5(a)
36-14-5(d)
36-14-5(f)
36-14-7(a)

Related Advisory Opinions:

98-117
97-112
97-103
97-7
96-100
96-68
96-30
94-60

Keywords:

Business associate
Private employment
Recusal