Advisory Opinion No. 99-27

Re: Terry Fleming

QUESTION PRESENTED

The petitioner, a Town of Narragansett Planning Board member, a municipal appointed position, requests an advisory opinion as to whether he may participate in the review of an application where the attorney representing the applicant before the Board is legal counsel to the petitioner’s private employer.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Town of Narragansett Planning Board member, a municipal appointed position, may participate in the review of an application notwithstanding the fact that the applicant's lawyer is legal counsel to the petitioner's private employer since his relationship with the attorney and the applicant does not trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(d).

The petitioner is employed by Park Row Associates, a consulting firm owned by Delta Dental of Rhode Island. William Landry, who is associated with the law firm of Blish & Cavanagh, serves as legal counsel for Delta Dental. Mr. Landry also provides legal assistance to Park Row Associates on an as needed basis. As an employee of Park Row Associates, the petitioner is not responsible for hiring legal counsel nor does he approve invoices for Mr. Landry or Blish & Cavanagh.

Under the Code of Ethics, the petitioner, as a member of the Town of Narragansett Planning Board, 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, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a). Also, pursuant to R.I. Gen. Laws § 36-14-5(d), the petitioner 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. 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).

Here, the petitioner is not a principal of Park Row Associates and there is no indication that he shares any common financial objective with Mr. Landry or his law firm. In light of these factors, the relationship between the petitioner and Mr. Landry (or the law firm of Blish & Cavanagh) does not rise to the level of business associate as that term is defined in § 36-14-2(3). As such, the connection between the official actions of the petitioner, as member of the Planning Board, and an attorney appearing before the Board, that also serves as legal counsel to the petitioner’s employer, is too remote to trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(d) and thereby preclude his participation. See A.O. 98-17 (concluding that the Code of Ethics did not prohibit the petitioner, an alternate member of the Cranston Board of Review, from participating in matters where a party's attorney is the same lawyer who provides legal services to the petitioner's private employer). However, should Mr. Landry, the law firm of Blish & Cavanagh, or any other legal counsel represent his employer before the Planning Board, the petitioner should recuse himself from participation in those matters and file a Section 6 notice with the Board and the Ethics Commission.

Code Citations:

36-14-2(3)
36-14-5(a)
36-14-6
36-14-7(a)
36-14-5002

Related Advisory Opinions:

98-17
96-73
96-6
93-21

Keywords:

Business associate
Private employment