Advisory Opinion No. 98-159

Re: Joseph R. Paolino

QUESTION PRESENTED

The petitioner, a Coastal Resources Management Council member, a state appointed official, requests an advisory opinion as to whether he may participate in a matter where an attorney with who he has had prior business relationships appears before him.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Coastal Resources Management Council (the “CRMC”) member, a state appointed position, does not have an existing or recurring business relationship with an attorney who represents clients before the CRMC and, therefore, he may participate in matters at the CRMC in which that attorney is a participant without violating provisions of the Code of Ethics. 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.

The Code of Ethics provides that the petitioner may not participate in any matter in which he has an interest, financial or otherwise, that 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). The Code of Ethics, R.I. Gen. Laws § 36-14-5(d), also prohibits the petitioner 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 a member of his family. An individual is a "business associate" of a public official if the official and that individual are "joined together" to "achieve a common financial objective." See R.I. Gen. Laws § 36-14-2(3). As such, the petitioner's participation in matters concerning, for instance, his attorney or business partner is prohibited by R.I. Gen. Laws §§ 36-14-5(a) and 5(f).

Past Commission advisory opinions have recognized that an ongoing attorney-client relationship or other relationship, in certain circumstances, creates a business association which requires an official or employee to recuse himself or herself from taking any public action whenever the official's attorney appears before him or her. See A.O. 98-142 (finding that this petitioner must recuse from participating in matters involving a law firm while he has an ongoing attorney-client relationship with a member of that firm) and A.O. 98-117 (concluding an Exeter Town Councilor could 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).

However, this Commission has found that the prohibitions described above are not applicable if it is clear that the business relationship between the public official and a private party has ended and that the parties do not have any specific plans to renew the business relationship. 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 past business relationship with an attorney does not implicate the prohibitions set forth in R.I. Gen. Laws § §36-14-5(a) and 36-14-5(d).

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(d)

36-14-5(f)

Related Advisory Opinions:

98-142

98-117

98-25

97-112

97-103

97-30

97-7

96-100

96-68

96-62

94-60

89-8

Keywords:

Business associate