Advisory Opinion No. 2003-66

Re: H. John Keimig

QUESTION PRESENTED

The petitioner, a member of the Health Services Council, a state appointed position, requests an advisory opinion as to whether he may participate in matters when members of law firms engaged by St. Joseph Health Services represent applicants, given his position as the Chief Executive Officer of St. Joseph Health Services.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Health Services Council, a state appointed position, may participate in matters when members of law firms engaged by St. Joseph Health Services represent applicants. This opinion is based on the fact that the petitioner’s relationship with his employer’s business associates is too remote to implicate the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(d).

The petitioner represents that he is the President and Chief Executive Officer of St. Joseph Health Services of Rhode Island. He informs that some applicants who come before the Health Services Council are represented by attorneys who are members of law firms who serve as either general counsel to the Hospital or are engaged for legal services by the Hospital on a routine basis. The petitioner represents that he is involved in the selection of the various law firms that represent the Hospital. The petitioner seeks this advisory opinion to determine whether he may participate in matters before the Health Services Council when applicants are represented by attorneys who are members of law firms engaged by his employer.

Pursuant to 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. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the petitioner has reason to believe or expect that he or any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a). He may not accept employment that will impair his judgment as to his official duties. See R.I. Gen. Laws § 36-14-5(b). Further, he is prohibited 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, an employer or a family member. See R.I. Gen. Laws § 36-14-5(d). “Business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3). Finally, Commission Regulation 36-14-5002 requires an official to recuse himself whenever his employer or the interest of his employer comes before his board or agency.

A business associate relationship exists under the Code where two individuals are joined together to achieve a common financial objective. R.I. Gen. Laws § 36-14-2(3). Past advisory opinions have opined 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. See A.O. 2002-6 (advising that members of the Westerly Town Council who hold leadership positions in the Chamber of Commerce are prohibited from participated in matters involving the Chamber of Commerce since they are business associates). Here, the petitioner is a business associate of St. Joseph Health Services since he is the President and Chief Executive Officer.

Additionally, numerous past advisory opinions have recognized that that an ongoing attorney-client relationship creates a business association. See A.O. 98-35 and advisory opinions cited therein. Accordingly, law firms engaged as legal counsel for St. Joseph Health Services are business associates of St. Joseph Health Services. However, the mere fact that the petitioner is a business associate of St. Joseph Health Services does not make him a business associate of any of St. Joseph Health Services’ other business associates. Since the petitioner is not joined together with any of his employer’s business associates to achieve a common financial objective, the Code of Ethics does not consider the petitioner to be a business associate of any law firm engaged by St. Joseph Health Services. See A.O. 99-27 (finding that a Narragansett Planning Board member may participate in the review of an application notwithstanding the fact that the applicant's lawyer is legal counsel to the petitioner's private employer); A.O. 98-17 (concluding that an alternate Cranston Zoning Board member may participate in matters where a party's attorney is the same lawyer who provides legal services to the petitioner's private employer). Accordingly, the petitioner may participate in the Health Services Council’s consideration of matters when members of law firms engaged by St. Joseph Health Services represent applicants.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5002

36-14-7(a)

Related Advisory Opinions:

2002-52

2002-14

2002-6

2001-15

2000-79

2000-65

99-27

99-26

98-35

98-17

Keywords:

Business associate

Private employment