Advisory Opinion No. 99-126

Re: Robert M. Stillings

A. QUESTION PRESENTED

The petitioner, a Barrington Technical Review Board member, a municipal appointed position, who is the owner and sole employee of Architectural Resources, Inc., requests an advisory opinion as to whether he may appear before the Barrington Technical Review, Planning and Zoning Boards regarding a private client’s project proposal.

B. RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Barrington Technical Review Board member, a municipal appointed position, who is the owner and sole employee of Architectural Resources, Inc., may not appear before the Barrington Technical Review Board on behalf of his client both while a member of the Review Board and for a period of one-year after he has officially severed his position with that Board. See R.I. Gen. Laws § 36-14-5(e). However, he may represent his client before the Planning and Zoning Boards without running afoul of the Code of Ethics. In the event that his client appears before the Technical Review Board regarding the project proposal, either pro se or represented by another individual/firm, the petitioner must recuse from participation and/or vote concerning said matter and file written notice of recusal in accordance with R.I. Gen. Laws § 36-14-5(f) and R.I. Gen. Laws § 36-14-6.

C. DISCUSSION

1. Facts

The petitioner is a member of the Barrington Technical Review Board, the members of which are appointed by and serve as an advisory committee to the Planning Board. The Technical Review Board provides the Planning Board with substantive input concerning the technical aspects of project proposals. In his private employment as an architect the petitioner is the owner and sole employee of Architectural Resources, Inc. In his request the petitioner advises that he has been retained to provide architectural design services to a client for a proposed project in Barrington. He indicates that the Technical Review, Planning and Zoning Boards all must approve the proposal. He requests guidance from the Commission as to whether he may appear before these municipal boards on behalf of his private client.

2. Analysis

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 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). Sections 36-14-5(b), (c) and (d) of the R.I. Gen. Laws prohibit the use and/or disclosure of confidential information acquired by an official or employee during the course of or by reason of his official employment, particularly for the purpose of obtaining financial gain.

The Code also provides that a public official may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1), and (2). Pursuant to R.I. Gen. Laws § 36-14-5(e)(3), the petitioner may not act as an expert witness before his agency with respect to any matter the agency’s disposition of which will or can reasonably be expected to directly result in an economic benefit or detriment to him or to any business by which the person is employed or that the person represents. Further, Section 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner officially has severed his position with the agency. The legislative intent of this revolving door provision presumably is to minimize any influence the former public official may have with respect to his former agency/employer. The only exceptions to Section 5(e)’s strict prohibitions are those allowed by this Commission [i]n cases of hardship.

The statutory prohibitions contained within Section 5(e) are stricter than virtually any other provisions in the Code of Ethics. In most instances under the Code, public officials and employees may address potential conflicts of interest by recusing from participation in related discussions and votes. However, absent an express finding by this Commission that a hardship exists, the prohibitions in that section are absolute. In other words, recusal is not an option unless the Commission determines that it is justified by a hardship. In cases of hardship, the Commission may allow exceptions to this blanket prohibition. The Commission has granted such hardships exceptions in the past when a matter involved the “vested property rights” of an official or employee. As interpreted by the Commission, vested property rights have included pre-existing ownership interests in real property that were a) the official’s or employee’s principal residence, or b) the official’s or employee’s place of business.

This petitioner’s request falls squarely within the parameters of Section 5(e)(1). The petitioner, a Technical Review Board member, is the owner and sole employee of Architectural Resources, Inc. He asks the Commission whether, in his private capacity, he may represent a client before the Technical Review Board, as well as other municipal entities. Here, the language of the prohibition enacted by the General Assembly clearly prohibits the petitioner from appearing before the Technical Review Board on behalf of himself or any other person. Although the petitioner is the firm’s sole employee, the Commission cannot construe the hardship exception contained in Section 5(e)(1) so broadly as to allow the petitioner to appear before his own agency.

As discussed below, these circumstances do not justify a finding of hardship. Unlike previous situations in which the Commission has found hardships to exist, the interests at issue with this petitioner do not involve his principal residence or place of business. Rather, they relate to his private business endeavors. Allowing a hardship exception in circumstances such as this would, in effect, render Section 5(e)(1)’s prohibitions a nullity. Were the Commission to find a hardship under these circumstances it would mean that Section 5(e)(1)’s restrictions did not attach to situations where a public official’s or employee’s private employment interests were at issue. An exception that broad would swallow the rule.

The breadth of Section 5(e)(1) was underscored in a Superior Court decision upholding a finding of violation by this Commission. In Thomas DiLuglio v. Rhode Island Ethics Commission, C.A. 85-4556 (Slip opinion, February 14, 1996), the Court affirmed a finding by the Commission that a former State Senator had violated Section 5(e)(1) by lobbying his former colleagues within a year after he left the General Assembly. The former State Senator could not avoid liability under the statute by claiming that his lobbying efforts related to his livelihood as a lobbyist; nor should the petitioner here avoid the prohibitions of the statute because his appearance before the Technical Review Board relates to his private employment as an architect.

The Commission concludes that the petitioner may not represent the interests of his private client before the Technical Review Board. As referenced above, the prohibitions contained in Section 5(e)(1) extend for a one-year period after he officially severs his position with the Board. By serving on the Technical Review Board in Barrington, while at the same time representing a client on a proposed project in that Town, the petitioner has placed himself between a rock and a hard place. Those decisions by the petitioner do not warrant a finding of hardship by this Commission.

In the event that the petitioner’s client appears before the Technical Review Board, either pro se or represented by another individual/firm, the petitioner must recuse from participation and/or vote on matters relating to the project proposal. See R.I. Gen. Laws §§ 36-14-5(a) and 36-14-7(a). Notice of recusal should be filed with both the Town of Barrington and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. Finally, the Commission concludes that the petitioner may appear before the Planning and Zoning Boards on his client’s behalf, provided the Technical Review Board does not exercise fiscal and jurisdictional control over those entities. See Commission Regulations 36-14-5008.

Code Citations:

36-14-5(a)
36-14-5(b)
36-14-5(c)
36-14-5(d)
36-14-5(e)
36-14-6
36-14-7(a)
36-14-5008

Related Advisory Opinions:

99-120
99-113
99-49
98-113
98-94
98-5
97-146
97-81
97-73
97-71
97-46
96-102

Related Caselaw:

DiLuglio v. Rhode Island Ethics Commission, C.A. 85-4556

Keywords:

Acting as Agent
Business Interest
Private Employment
Revolving Door