Advisory Opinion No. 2005-53 Re: Lenette F. Boisselle, Esq. QUESTION PRESENTED: The petitioner, a Commissioner on the Rhode Island Underground Storage Tank Review Board, a state appointed position, requests an advisory opinion to determine whether she may participate in and vote on decisions to provide reimbursements to dues-paying members of the American Petroleum Institute, given that the American Petroleum Institute is her client in her private practice of law. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Commissioner on the Rhode Island Underground Storage Tank Review Board, a state appointed position, may participate in and vote on decisions to provide reimbursements to dues-paying members of the American Petroleum Institute, despite the fact that the American Petroleum Institute is her client in her private practice of law. The petitioner informs that she is a Commissioner on the Rhode Island Underground Storage Tank Review Board (the “RIUST Review Board”). She represents that the RIUST Review Board oversees a fund from which it provides reimbursements. She points out that the purpose of the fund, pursuant to Rhode Island General Laws § 46-12.9-5, is: to facilitate the cleanup of leaking underground storage tanks or underground storage tank systems, and sites owned or occupied by a city, town, the state or any agency of the state in order to protect the environment including drinking water supplies and public health. The petitioner informs that the RIUST Review Board has a process for obtaining reimbursements. She states that the RIUST Review Board’s staff researches the submissions for reimbursements, makes a recommendation for reimbursements or denial of reimbursements, and submits their recommendation to the RIUST Review Board for consideration. She represents that the RIUST Review Board votes to approve and deny reimbursements to Rhode Island gasoline station owners who have made expenditures to clean up stations following petroleum leaks. She points out that the RIUST Review Board is obligated to approve a reimbursement request (subject to the availability of funds) once the station owner meets the criteria for reimbursement. In addition to serving as a Commissioner, the petitioner informs that she is a self-employed lawyer and legislative consultant/lobbyist. She represents that one her clients in her private practice of law is the American Petroleum Institute (the “API”). She informs that the API is a national, not-for-profit association that represents the petroleum industry and is based out of Washington, D.C. She states that the API derives income from membership dues. She informs that a few of the association’s dues-paying members own or operate gasoline stations in Rhode Island or sell franchises to independent gasoline station owners, and that some of these members seek reimbursement from the RIUST Review Board. To date, the petitioner informs that she has recused herself from such reimbursements. Based on telephone conversations with the petitioner, she informs that she is requesting an advisory opinion solely to determine whether the Rhode Island Code of Ethics requires her to recuse from participating in and voting on decisions by the RIUST Review Board to provide reimbursements to businesses that are dues-paying members of the API, which is her client. 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. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if it is reasonably foreseeable that she or any family member or business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. R.I. Gen. Laws § 36-14-7(a); Regulation 36-14-7001. The Code of Ethics also prohibits the petitioner from using her public position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself, a business associate, employer, or family member. R.I. Gen. Laws § 36-14-5(d). Furthermore, section 5(f) of the Code requires the petitioner to recuse herself from voting or participating in consideration and disposition of a matter involving a business associate. Under the Code of Ethics, a business associate is defined as an individual or business entity joined with a public official to achieve a common financial objective. See R.I. Gen. Laws §§ 36-14-2(3) and 2(7). Here, the API is the petitioner’s client and her business associate under the Code of Ethics. The petitioner informs that she is aware that she will need to recuse herself from any matters that come before the RIUST Review Board regarding the API due to their business association. The Commission advises the petitioner that notice of such recusals must be filed in compliance with R.I. Gen. Laws § 36-14-6. Based on the petitioner’s representations, however, she does not have a business association with any of the individual dues-paying members of the API. She informs that she is not employed by these members individually and that she has no business association with them. Furthermore, the petitioner informs that her participation in the RIUST Review Board’s consideration of such reimbursements will not result in a direct financial impact to her or to the API. Accordingly, the petitioner’s participation in and vote on reimbursements to dues-paying members of the API does not trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a), 5(d) and 5(f). Therefore, the Commission opines that the petitioner may participate in and vote on such reimbursements provided that she does not have a business association with these members, and that neither she, nor her business associate, receives a direct financial impact as a result of such official action. The petitioner is advised that this opinion solely addresses whether the Code of Ethics prohibits her from participating in reimbursements for dues-paying members of API. This opinion does not, and cannot, address whether any other state statutes, rulings, regulations, or policies prohibit such conduct. Code Citations: 36-14-2(3) 36-14-2(7) 36-14-5(a) 36-14-5(d) 36-14-5(f) 36-14-6 36-14-7(a) Regulation 36-14-7001 Related Advisory Opinions: 2000-77 96-92 96-60 Keywords: Non-profit association Recusal