Advisory Opinion No. 2013-10 Advisory Opinion No. 2013-10 Re: Scott R. Schmitt QUESTION PRESENTED The Petitioner, a member of the Cumberland Town Council, a municipal elected position, requests an advisory opinion regarding whether he is prohibited by the Code of Ethics from participating when an attorney, who is also his tenant, represents another person before the Town Council. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Cumberland Town Council, a municipal elected position, is prohibited by the Code of Ethics from participating when an attorney, who is also his tenant, represents another person before the Town Council. The Petitioner is a member of the Cumberland Town Council (“Town Council”), having been elected to his first term in November 2012. In his private capacity, he is the owner and operator of Adam VIII Inc., d/b/a The Clothesline Laundry Services, a small chain of self service laundromats located in Woonsocket, Rhode Island and Blackstone, Massachusetts. He further represents that he has ownership interests in numerous other businesses, including ARS Holdings, LLC (“ARS”), which is jointly owned by the Petitioner and his spouse. He informs that ARS owns and operates four (4) commercial properties in Cumberland. With respect to ARS, he states that he is not involved in the day to day operations, has not been involved in any material aspect of running the business, and is not involved with negotiating any leases with any current or prospective tenants. He represents that his spouse, through her property management company, manages all the operations of ARS. The Petitioner states that one of the tenants of ARS is Bigos & Partington, Ltd., a Cumberland based law firm. He informs that Scott Partington, a principal of Bigos & Partington, occasionally appears before the Town Council and presently has a matter pending before the Town Council. The Petitioner represents that he recused on January 16, 2013, from a vote where Mr. Partington requested a zoning change for a client. The Petitioner represents that he will continue to recuse when Mr. Partington appears before the Town Council until he receives further advice from this Commission. Rhode Island General Laws § 36-14-5(f) requires a person subject to the Code to recuse himself from participation when his business associate represents himself or another before the state or municipal agency of which the person is a member or employee. A person will represent another person before a state or municipal agency if he is authorized by that other person to act, and does in fact act, as the other person’s attorney in the presentation of evidence or argument before that agency for the purpose of influencing the judgment of the agency in favor of that other person. R.I. Gen. Laws § 36-14-2(13); Commission Regulation 36-14-5016(b)(1). Commission Regulation 36-14-5002 (“Regulation 5002”), entitled “Additional circumstances warranting recusal,” also requires a person subject to the Code of Ethics to recuse himself from participation if his business associate appears or presents evidence or arguments before his or her state or municipal agency. Regulation 5002(a)(2). A “business associate” is defined as any individual or business entity joined together with a public official “to achieve a common financial objective.” Section 36-14-2(3), (7). The Commission has consistently found that the landlord/tenant relationship constitutes a “business associate” relationship as that term is defined in the Code. See e.g. A.O. 2012-22; A.O. 2011-44; A.O. 2011-36; A.O. 2006-9; A.O. 2005-49; A.O. 2002-70; A.O. 98-16. For example, in Advisory Opinion 2011-44, the Commission opined that a North Smithfield Town Council member and an architect were business associates because the petitioner had a 50% ownership interest in the real estate that was rented to that architect. Therefore, the petitioner was required to recuse from participating in the Town Council’s review of a zoning change to a proposed elderly housing development for which that particular architect was retained and expected to appear before the Town Council. Similarly, in Advisory Opinion 2011-36, a Providence City Plan Commission member and an architectural firm were business associates because the petitioner had a 25% ownership interest in the company that owned the building in which the architectural firm was a tenant. Thus, the petitioner was required to recuse from City Plan Commission matters in which the architectural firm appeared. In the present matter, the Petitioner and his spouse own the building in which Mr. Partington’s law firm is a tenant. Therefore, the Petitioner and Mr. Partington are business associates. Accordingly, § 36-14-5(f) and Regulation 5002 require the Petitioner to recuse from participating in the Town Council’s consideration of a matter, including discussions and votes, when Mr. Partington represents himself or another before the Town Council. Notice of recusal shall be filed in accordance with § 36-14-6. Code Citations: § 36-14-2(3) § 36-14-2(7) § 36-14-2(13) § 36-14-5(f) § 36-14-6 Commission Regulation 36-14-5002 Commission Regulation 26-14-5016 Related Advisory Opinions: A.O. 2012-22 A.O. 2011-44 A.O. 2011-36 A.O. 2006-9 A.O. 2005-49 A.O. 2002-70 A.O. 98-16 Keywords: Business Associate Recusal