Advisory Opinion No. 2008-37 Rhode Island Ethics Commission Advisory Opinion No. 2008-37 Re: Claire McQueeny QUESTION PRESENTED: The petitioner, a member of the New Shoreham Historic District Commission, a municipal appointed position, requests an advisory opinion regarding whether she may participate in discussion and voting on matters relating to the Spring House Hotel, given that her private business supplies flowers for some couples being married there. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the New Shoreham Historic District Commission, a municipal appointed position, may participate in discussion and voting on matters relating to the Spring House Hotel, notwithstanding that her private business supplies flowers for some couples being married there. The petitioner is the Chairperson of the New Shoreham Historic District Commission ("HDC"). Pursuant to the Home Rule Charter of New Shoreham, the HDC is responsible for carrying out the provisions and purposes of the historic zoning ordinances of the town, receiving and acting on applications filed by owners of property within the town's historic districts, and discharging other responsibilities required pursuant to state law or town ordinances. The petitioner represents that a matter concerning the Spring House Hotel ("Spring House") recently came before the HDC, at which time the HDC denied an application by the Spring House to enclose an exterior drain pipe and to install a particular type of roof. At that time, the owner of the Spring House accused the petitioner of having a conflict of interest given that her floral business supplies flowers for events held at the Spring House. The petitioner states that the owner has threatened to file a complaint against her with the Rhode Island Ethics Commission. Given this accusation, and considering that this and other matters concerning the Spring House will continue to come before the HDC, the petitioner is requesting the instant advisory opinion. The petitioner states that in her private capacity, she works out of her home as a floral designer specializing in wedding flowers. She estimates that, in 2008, she will supply flowers for thirty-eight (38) weddings on Block Island. Of those weddings, the petitioner states that seven (7) will be held at the Spring House. The petitioner states that she has no business association with the Spring House or any other wedding venue on Block Island, and that she always contracts with, and is paid by, the bridal couple directly. She further notes that while certain venues including the Spring House may recommend her services to wedding couples, she pays no fees or commissions for such referrals. 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. Substantial conflict is defined as a "direct monetary gain or a direct monetary loss" that accrues, by virtue of the public official's activity, to that official, a family members a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, the Code provides that a public official shall not use her office to obtain financial gain other than as provided by law for herself, any person within her family, any business associate, or any business by which she is employed or which she represents. See R.I. Gen. Laws § 36-14-5(d). If the business associate of a public official represents himself or another person, or acts as an expert witness, before a public official's agency, or stands to be financially impacted by a decision of the agency, such official must disclose her business association and recuse from participation in the agency's consideration of the matter. See R.I. Gen. Laws § 36-14-5(a); § 36-14-5(f). The Code defines “business associate” as an individual or business entity joined together with another individual or business entity to achieve a common financial objective. See R.I. Gen. Laws § 36-14-2(3); § 36-14-2(7). Given the above provisions of the Code of Ethics, the petitioner would be required to recuse from HDC matters involving the Spring House if she is considered to be its "business associate." Here, the petitioner states that she only contracts with, and directly bills, the bridal couple for her flower arrangements. Furthermore, although the Spring House may sometimes recommend the petitioner's floral services to its patrons, it does not receive any referral fee or commission for doing so. Given these facts, the most that can be said is that the petitioner and the Spring House have a common business associate in the wedding couple. Stated another way, the Spring House is the business associate of the petitioner's business associate (the bridal couple). Accordingly, and based on the petitioner's representations, she is not joined together with the Spring House to achieve a common financial objective; rather, she and the Spring House are each joined with a common third party to achieve different, although related, objectives. For these reasons, the Code of Ethics does not prohibit the petitioner from participating in HDC discussion and voting relative to matters brought by or pertaining to the Spring House. 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) Keywords: Business interest Recusal