Advisory Opinion No. 2018-52 Rhode Island Ethics Commission Advisory Opinion No. 2018-52 Approved: October 16, 2018 Re: Michael D. Fournier QUESTION PRESENTED: The Petitioner, a member of the North Smithfield Planning Board, a municipal appointed position, who in his private capacity is a general contractor, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Planning Board’s discussion and decision-making relative to a proposed development, given that he had communications with and provided a business card to a member of the development team and to an attorney for the proposed development. RESPONSE: It is the opinion of the Ethics Commission that the Petitioner, a member of the North Smithfield Planning Board, a municipal appointed position, who in his private capacity is a general contractor, is not prohibited by the Code of Ethics from participating in the Planning Board’s discussion and decision-making relative to a proposed development, notwithstanding that he had communications with and provided a business card to a member of the development team and to an attorney for the proposed development. The Petitioner is a member of the North Smithfield Planning Board (“Planning Board”) who in his private capacity is a general contractor for residential construction. The Petitioner explains that during its August 9, 2018 meeting, the Planning Board convened a site visit of a proposed housing development currently under review by the Planning Board. The Petitioner represents that the site visit was an opportunity for members of the public and the Planning Board to visit the site and speak with the engineers in order to gain a better understanding of the proposed development. The Petitioner states that because he was early for the site visit, he sat in his personal vehicle and reviewed private blueprints unrelated to the proposed development. While he was reviewing the blueprints, the Petitioner was approached by John Boucher (“Boucher”) who inquired whether the Petitioner was reviewing the blueprints for the proposed development, explaining that he was an abutter to the development and also a developer of “55 and Older” communities in Massachusetts. The Petitioner states that after the site visit officially concluded, Boucher asked the Petitioner for a business card. The Petitioner explains that an attorney for the proposed development was nearby and also asked the Petitioner for a business card. The Petitioner provided them both with his business card and advised the attorney that any communications relative to the development would have to be conducted through the Planning Board. The Petitioner states that subsequently he became aware of the fact that Boucher is actually a part of the development team for the proposed development. The Petitioner represents that he does not have a business relationship with Boucher nor does he plan to do any business with Boucher or the proponents of the proposed development in the future. The Petitioner notes that, out of an abundance of caution, he has recused from the Planning Board’s discussions relative to the proposed development. Given this set of facts, the Petitioner asks the Ethics Commission for guidance regarding whether the Code of Ethics prohibits him from participating in the Planning Board’s discussion and decision-making relative to the proposed development. Under the Code of Ethics, a public official 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. R.I. Gen. Laws § 36-14-5(a). A public official will have an interest in substantial conflict with his official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, a family member, a business associate or employer. Section 36-14-7(a); Commission Regulation 7001.[1] The Code of Ethics defines a business associate as an individual or business entity joined with an official to achieve a common financial objective. See sections 36-14-2(3) & (7). The Code of Ethics further prohibits a public official or employee from using his public office or confidential information received through holding public office to obtain financial gain, other than that provided by law, for himself or any person within his family, any business associate or any business by which he is employed or represents. Section 36-14-5(d). A public official is also prohibited from soliciting or accepting a gift, employment or certain contributions with the understanding that the official’s vote, official action, or judgment would be influenced thereby. Section 36-14-5(g). Here, notwithstanding the fact that the Petitioner provided Boucher and the attorney with a business card, upon a request made by Boucher and the attorney, the Petitioner specifically represents that there is no current or anticipated future business association between the Petitioner and Boucher or between the Petitioner and the attorney. Without the existence of a relationship covered by the Code of Ethics (e.g., business associate, family, or employer) or a quid pro quo arrangement based on any understanding that the Petitioner’s vote, official action, or judgment would be influenced by the receipt of a gift, loan, reward or promise of future employment, the provisions of the Code of Ethics do not prohibit him from participating in the Planning Board’s discussions and decision-making relative to the proposed development. See A.O. 2001-24 (concluding that a Town Councilor employed by the Secretary of State’s Office may participate in Council matters involving property owned by the Secretary of State’s Deputy Chief of Staff, given that they do not have a familial relationship and no business association exists between the parties). Accordingly, based on Petitioner’s representations and the above-stated provisions of the Code of Ethics, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from participating in the Planning Board’s discussion and decision-making relative to a proposed development. This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations: § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-5(g) § 36-14-7(a) Commission Regulation 36-14-7001 Related Advisory Opinions: A.O. 2001-24 Keywords: Business Associate Recusal