Advisory Opinion No. 99-95

Re: Kevin J. McAllister

QUESTION PRESENTED

The petitioner, a Cranston City Councilor, a municipal elected position, requests an advisory opinion as to whether he may participate in the consideration of a matter concerning pension benefits of disabled firefighters and/or in the consideration of an ordinance that would afford all disabled Cranston firefighters eligibility for tax free status given that his law firm previously represented fourteen Cranston firefighters in litigation with City of Cranston.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a Cranston City Councilor, a municipal elected position, from participating in the consideration of any matters involving City of Cranston firefighters, including an ordinance concerning the tax status of Cranston firefighters disability pensions. The petitioner represents that his law firm represented fourteen disabled firefighters in litigation against the City of Cranston more than five and one-half years ago. That representation was the subject of a prior advisory opinion. See A.O. 93-84. The litigation concluded several years ago. Given that the attorney/client relationship has concluded, absent some other factor or business relationship with disabled firefighters in Cranston, the potential conflict of interest with his present public responsibilities has been removed.

The Code of Ethics provides that 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 in the public interest. Substantial conflict is defined as a "direct monetary gain or a direct monetary loss" that accrues, by virtue of the public official's activity, to that individual, a family member, a business associate, an employer, or any business which the public official represents. R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). Additionally, the Code provides that a public official or employee may not use his office to obtain financial gain other than as provided by law. R.I. Gen. Laws § 36-14-5(d). ). A business associate is defined as an individual or business entity joined with an official to achieve a common financial objective. See R.I. Gen. Laws §§ 36-14-2(3) and 2(7).

Previously, the Commission has concluded that an ongoing attorney-client relationship creates a business association that triggers the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(f). See e.g., A.O. 98-56 and A.O. 98-25. Specifically, the Commission has found that this relationship extends not only to the attorney that represents the interests of the official but also to the law firm by which the attorney is employed or professionally associated since there is a financial nexus between the official and the firm. See A.O. 95-81 (opining that a member of the Cranston Zoning Board should not participate and/or vote on a matter presented by a law firm when an attorney of that firm represents the Petitioner in an unrelated matter); A.O. 93-84 (concluding that the current petitioner should not participate as a Cranston City Councilor in review of pending litigation or pension benefits affecting retired and disabled Cranston firefighters given that his law partner was representing those firefighters).

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 where there is no ongoing or anticipated future relationship between the parties. In such instances, a public official may participate in matters involving his or her former business associate assuming no other conflicts are present. 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. 98-25; A.O. 96-62, A.O. 96-68, and A.O. 97-7.

After considering the relevant provisions of the Code and past advisory opinions, we conclude that the petitioner's law firm's past business relationship with disabled firefighters does not implicate the prohibitions set forth in R.I. Gen. Laws § §36-14-5(a) and 36-14-5(d). Consequently, he may participate in the consideration of the referenced ordinance regarding disabled firefighters provided there is no current business relationship and where it is not reasonably foreseeable that the petitioner or his law firm will engage in a future business relationship with disabled firefighters in the City of Cranston.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(d)

36-14-5(f)

Related Advisory Opinions:

99-78

99-51

98-159

98-56

98-25

97-112

97-7

96-68

96-62

96-30

95-81

93-84

Keywords:

Business Associate