Advisory Opinion No. 2009-10 Rhode Island Ethics Commission Advisory Opinion No. 2009-10 Re: M. Theresa Santos QUESTION PRESENTED The Petitioner, a member of the Middletown Town Council, a municipal elected position, requests an advisory opinion regarding whether she must recuse from her duties as a Town Council member when matters concerning the Middletown Historical Society come before the Town Council, given that she is the Treasurer of the Historical Society. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a member of the Middletown Town Council, a municipal elected position, must recuse from her duties as a Town Council member when matters concerning the Middletown Historical Society come before the Town Council, given that she is the Treasurer of the Historical Society, and thus a business associate of that entity. The Petitioner is a member of the Middletown Town Council (“Town Council”). She represents that she is also the Treasurer of the Middletown Historical Society (“Historical Society”), a private 501(c)(3) non-profit entity. She states that she receives no remuneration for serving as Treasurer. She further states that the Historical Society is involved in various preservation projects in the Town of Middletown and has occasion to seek funding for some of the projects from the Town Council. Given this set of facts, the Petitioner requests an advisory opinion as to whether she must recuse from her duties on the Town Council when budgetary items concerning the Historical Society come before the Council. Under the Code of Ethics, a public official or employee 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. See R.I. Gen. Laws § 36-14-5(a). The petitioner will have an interest in substantial conflict with her official duties if she has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of her official activity, to herself, a family member, a business associate, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(a). Commission Regulation 36-14-7001 provides that a public official has reason to believe or expect that a conflict of interest exists when it is “reasonably foreseeable.” An official may not participate in a matter concerning or presented by a business associate. See R.I. Gen. Laws § 36-14-5(f). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3). In the past, the Commission has concluded that public officials are "business associates" of entities for which they serve either as members of the Board of Directors or as officers or in other leadership positions that permit them to affect the financial objectives of the organization. See A.O. 2007-58 (opining that a member of the Tiverton Planning Board, who was also a member of the Board of Directors of the Tiverton Yacht Club, was a business associate of the Yacht Club and must recuse from participating in the Planning Board’s review of the proposed amendment to the zoning ordinance submitted by the Yacht Club); A.O. 2006-50 (opining that, while the Chairperson of the Smithfield Planning Board could simultaneously serve as the Chairperson of the Smithfield Republican Town Committee (“the SRTC”), as an officer of the SRTC he was a “business associate” of the organization, and thus, had to recuse from matters coming before the Planning Board involving the SRTC); 2000-74 (concluding that Housing Authority Commissioners may not participate in that Authority’s consideration of the Westerly Housing Association’s funding request, because, as members of the Board of Directors of the Housing Association, the Commissioners had a business association with it). Accordingly, the Petitioner is considered a business associate of the Historical Society for purposes of the Code of Ethics. Accordingly, it is the opinion of the Ethics Commission that the Petitioner must recuse from her duties on the Town Council when matters concerning the Historical Society come before the Town Council, in accordance with R.I. Gen. Laws § 36-14-6. Code Citations : § 36-14-2(3) § 36-14-5(a) § 36-14-5(f) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-7001 Related Advisory Opinions : A.O. 2007-58 A.O. 2006-50 A.O. 2000-74 Keywords : Business Associate Recusal