Advisory Opinion No. 99-113

Re: Tracy E. Dillon

QUESTION PRESENTED

The petitioner, a New Shoreham Historic District Commission member, a municipal appointed position, requests an advisory opinion as to whether (1) she may represent clients before the Historic District Commission if she recuses on the matter; (2) she may participate in matters presented by members of the Island Design Collaborative, an Limited Liability Corporation, given that she is a member of the Collaborative; and, (3) she may participate as a Historic District Commission member on Island Design Collaborative projects that she is not involved in either professionally or financially.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission, that the petitioner, a New Shoreham Historic District Commission member, a municipal appointed position, may represent clients before her the Historic District Commission if she recuses on the matter based on General Commission Advisory 8 and the particular facts of this advisory opinion request. However she must recuse on matters presented by members of the Island Design Collaborative, a Limited Liability Corporation, given that she is a member of the Collaborative and she is a business associate of the other members of the LLC regardless of whether she is involved in the particular project. Additionally, the petitioner must recuse as a Historic District Commission member on Island Design Collaborative projects even if she is not involved in the project either professionally or financially. When recusing, the petitioner must not participate in the discussion and vote on the matter and must complete a conflict of interest statement in accordance with Section 6 of the Code of Ethics, filing the original with the Historic District Commission and a copy with the Ethics Commission.

Under the Code of Ethics, the petitioner may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her 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 her office to obtain financial gain other than as provided by law. R.I. Gen. Laws § 36-14-5(d). The Code provides that a business associate may not appear before the public official unless the associate first advises the agency of the nature of his/her business relationship with the public official and the public official recuses herself from voting on or otherwise participating in the consideration or disposition of the matter at issue. See R.I. Gen. Laws § 36-14-5(f). Under R.I. Gen. Laws § 36-14-2(3), a “business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective”. Finally, the Code of Ethics provides that while serving and for a period of one year after a person has officially terminates his or her position with any state or municipal agency, that person shall not appear before the state or municipal agency on which the person had served unless a showing of hardship is demonstrated to the Ethics Commission. R.I. Gen. Laws §§ 36-14-5(e)(1) and 5(e)(4).

On November 30, 1989, the Commission issued General Commission Advisory 8, Architect Members of State and Local Historic Preservation Commissions Appearing Before Their Respective Agencies. The Commission concluded that “…architects who specialize in historic preservation and who serve on historic district commission may represent clients before their respective commission without triggering a violation of the Code of Ethics.” The Commission based this finding on “…the fact that historic architects are relatively few in number and that historic architects are essential to the proper functioning of historic district commissions.” These findings, in effect, were based on the hardship exception to R.I. Gen. Laws § 36-14-5(e).

The petitioner's situation falls within the parameters of that general commission advisory. She is an apprentice architect specializing in historic preservation and is a member of the Block Island Historic District Commission. Given these facts, she may represent clients before her own board. However, she must recuse from participation and voting on such matters as a Historic District Commission member.

The petitioner owns her own architectural design business and recently formed an LLC, Island Design Collaborative (IDC), with two other members of the Historic District Commission and a Town Councilor. She asks about recusal for applications presented by other members of IDC or projects of IDC where she is not professionally or financially involved. Previously, the Commission has concluded that public officials are “business associates” of entities for which they serve either as members of the Board of Directors or in other leadership positions that permit them to affect the financial objectives of the organization. If an official has such a leadership position, the Commission has required that the official recuse him or herself if the interests of the organization would be affected by an action to be taken by his or her public agency. See A.O. 96-46 (concluding that members of the Providence Historic District Commission (PHCD) who are also Board of Directors members of the Providence Preservation Society Revolving Fund or its corporate parent, the Providence Preservation Society, were prohibited from voting or otherwise participating in the PHDC's reconsideration of an application involving the Providence Preservation Society Revolving Fund); A.O. 96-75 (advising three members of the General Assembly who also served as members of the Board of Directors of local hospitals to recuse themselves from participation regarding hospital issues since they had a business association with the local hospitals); A.O. 98-76 (concluding that a Narragansett Town Councilor should not participate in appropriating funding for the Chamber of Commerce since she served on its Board of Directors); and A.O. 96-76 (finding that a Health Services Council Member must recuse in matters where his law firm's clients appear before him given his common financial interest with the firm although he served as an independent contractor);

Here, the Commission concludes that the petitioner may not participate in the consideration of applications submitted by members of IDC or for IDC projects. As a member of the limited liability corporation, the petitioner has a business association with that corporation and its other members that triggers the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a), 5(d) and 5(f). Notice of recusal should be filed with both the Historic District Commission and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. This advisory opinion does not address the propriety of other members of the Historic District Commission or Town Council appearing before the Historic District Commission nor is there sufficient information before this Commission at this juncture to address whether the rule of necessity is applicable here.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(d)

36-14-5(e)

36-14-5(f)

36-14-6

36-14-7(a)

Related Advisory Opinions:

GCA 8

99-64

99-56

96-46

99-35

99-33

98-156

98-108

98-76

98-71

98-44

98-16

98-10

96-76

96-75

96-58

96-54

96-46

95-81

95-59

94-39

Keywords:

Business Associate

Revolving Door