Advisory Opinion No. 2005-64 Re: David A. Fontaine, CPA QUESTION PRESENTED: The petitioner, a member of the of the Burrillville Redevelopment Agency, a municipal appointed position, requests an advisory opinion as to whether he may participate in discussions or vote on matters coming before the Burrillville Redevelopment Agency regarding a nonprofit developer’s request for approval of a project in a redevelopment district, given that the petitioner is a partner in an accounting firm that provides accounting services to this developer on a “continuing basis.” RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Burrillville Redevelopment Agency, a municipal appointed position, may not participate in discussions or vote on matters coming before the Burrillville Redevelopment Agency regarding a nonprofit developer’s request for approval of a project in a redevelopment district, given that the petitioner is a partner in an accounting firm that provides accounting services to this developer on a “continuing basis.” The petitioner informs that he is a member of the Burrillville Redevelopment Agency (“BRA”), which is a quasi-municipal agency established by Town ordinance pursuant to state enabling legislation. The petitioner states that the purpose of the BRA is to assist and encourage redevelopment of substandard and blighted areas. In addition, the petitioner informs that he is a partner in an accounting firm that provides accounting services on a “continuing basis” to a nonprofit developer that plans to appear before the BRA to seek approval from the BRA for a project in a redevelopment district which is governed by the BRA. The petitioner requests this advisory opinion to determine whether a conflict of interest exists if he participates in discussions or votes on matters coming before the BRA regarding the developer’s request. 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 and employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). The petitioner will have an interest in substantial conflict with his official duties if he has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(a). Furthermore, section 5(f) of the Code prohibits a business associate of a public official from representing himself before the official’s agency unless (a) the business associate notifies the official’s agency of the nature of their relationship, and (b) the official recuses himself from voting on or otherwise participating in the agency’s consideration of the matter at issue. R.I. Gen. Laws § 36-14-5(f). A “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). In the instant matter, the petitioner is a business associate of the nonprofit developer because he is a partner an accounting firm that provides accounting services to the developer on a “continuing basis.” See A.O. 97-7 (opining that a member of the Individual Sewage Disposal System Technical Review Committee must recuse himself from consideration of matters where the member currently provides consulting work for the company that is before the Board); A.O. 94-60 (opining that a North Kingstown Planning Commission member may not participate in the consideration of a subdivisions proposal submitted by an engineer where the member planned to engage in business projects with that engineer in the immediate future). Accordingly, the Commission opines that the Code of Ethics requires notification to the BRA of this business relationship and requires the petitioner to recuse himself from the BRA’s consideration of matters involving his business associate. Notice of recusal must be filed with the Planning Board and the Rhode Island Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Code Citations: 36-14-2(3) 36-14-5(a) 36-14-5(d) 36-14-5(f) 36-14-6 36-14-7(a) Related Advisory Opinions: 97-7 94-60 Keywords: Business Associate Recusal