Advisory Opinion No. 99-78

Re: Michael J. DeLuca

QUESTION PRESENTED

The petitioner, a Narragansett Planning Board member, a municipal appointed position, requests an advisory opinion as to whether he must recuse himself from participating in matters where either a professional who previously represented him or a personal acquaintance appears before the Board.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Narragansett Planning Board member, a municipal appointed position, may participate in the Board’s consideration of matters involving a personal acquaintance and/or a professional who previously represented him, provided a) no business relationship currently exists between the parties and b) it is not reasonably foreseeable that the parties will engage in a future business relationship.

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 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(f) of the Code requires the petitioner to recuse himself from voting or participating in the consideration and disposition of a matter involving a business associate. See R.I. Gen. Laws § 36-14-5(f) A public official or employee has reason to believe or expect that a conflict may exist when it is "reasonably foreseeable." Commission Regulation 6001.

In past advisory opinions, the Commission has required public officials to recuse from consideration of matters if the official had an ongoing or anticipated business relationship with an individual or entity appearing before his or her public body. See e.g., A.O. 98-142 (finding that a Coastal Resource Management Council member should recuse from participating in matters involving a law firm while he has an ongoing attorney-client relationship with a member of that firm); A.O. 98-117 (concluding an Exeter Town Councilor should 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); and, A.O. 94-60 (concluding that a member of the North Kingstown Planning Commission should not participate in the consideration of a subdivisions proposal submitted by an engineer where the member planned to engage in business projects within the immediate future with that engineer).

However, the Commission consistently has found that no potential for a conflict of interest exists when a prior business relationship between a public official and a private party has ended and there is no ongoing or anticipated future relationship between the parties. See e.g., 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. 98-25; A.O. 97-7 A.O. 96-68, and A.O. 96-62. In such instances, a public official may participate in matters involving his or her former business associate, assuming no other conflicts are present.

Accordingly, the Commission concludes that the petitioner may participate in the Planning Board’s consideration of matters where he previously had a business relationship with an individual appearing before the Board, provided that the relationship has terminated. Further, he should recuse himself from consideration of any matters involving former business associates where there is an expectation of future business dealings between the parties. Notice of recusal should be filed with both the Ethics Commission and the Town of Narragansett pursuant to R.I. Gen. Laws § 36-14-(6).

Finally, the petitioner may participate in the Board’s consideration of matters involving a personal acquaintance since a social relationship between a public official and a person appearing before him does not, in and of itself, create an impermissible conflict within the meaning of the Code. See A.O. 92-72 (Middletown Zoning Board member could participate in matter where social relationship but no business relationship exists with applicant provided that the Council member could act in an impartial manner concerning that person’s application). When enacting the Code of Ethics, the General Assembly included as one of its legislative purposes the elimination of appearances of impropriety. The legislature did not, however, make the appearance of impropriety a violation of the law. Therefore, if, in a particular situation, the petitioner believes his participating would create an appearance of impropriety, he may, although he is not required to do so, recuse. Additionally, the Commission recommends that he should publicly disclose the nature of his relationship with the acquaintance and/or professional and the basis upon which he intends to participate.

Code Citations:

36-14-2(3)
36-14-5(a)
36-14-5(d)
36-14-5(f)
36-14-6
36-14-7(a)
36-14-6001

Related Advisory Opinions:

99-11
98-159
98-142
98-141
98-117
98-25
97-112
97-103
97-7
96-100
96-68
96-62
96-30
96-20
94-60

Keywords:

Business Associate
Recusal