Advisory Opinion No. 2014-22
Approved: August 19, 2014
Re: Scott Wolf
The Petitioner, a member of the City of Providence Zoning Board of Review, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Zoning Board’s consideration of an appeal in which one of the appellants is his employer’s business associate.
It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the City of Providence Zoning Board of Review, a municipal appointed position, is not prohibited by the Code of Ethics from participating in the Zoning Board’s consideration of an appeal in which one of the appellants is his employer’s business associate.
The Petitioner is a member of the City of Providence Zoning Board of Review (“Zoning Board”). He represents that he has served continuously since his initial appointment in 2003. He states that the Zoning Board has five active members and one alternate member. In accordance with state law, a quorum of five Zoning Board members is required for each meeting and for the consideration of each matter.
In his private capacity, the Petitioner is the Executive Director of Grow Smart Rhode Island (“Grow Smart”), a statewide 501(c)(3) public interest group that works to achieve: revitalized, walkable urban and town centers; housing options and affordability; expanded transportation choices; a vital agricultural sector; and responsible stewardship of natural resources. The Petitioner represents that he is an employee of Grow Smart and he is not an officer or director of the organization.
The Petitioner represents that on July 21, 2014, the Zoning Board is scheduled to consider the appeal of the Providence Historic District Commission’s decision to permit the demolition of the former General Electric Base Plant Facility (“GE Plant Appeal”) on Atwells Avenue in Providence. He states that another member of the Zoning Board, Marc A. Greenfield, Esquire, has already stated that he will recuse from the Zoning Board’s consideration of the GE Plant Appeal. Commission staff contacted Mr. Greenfield regarding his reasons for recusal given that the facts presented by the Petitioner indicated that there may be difficulty achieving a quorum of Zoning Board members for this matter. On July 10, 2014, the Commission received an affidavit from Mr. Greenfield in which he averred that he is an attorney in private practice and he currently represents three of the appellants to the GE Plant Appeal in other matters that are not before the Zoning Board.
The Petitioner further informs that one of the five entities appealing the GE Plant decision is the Providence Preservation Society (“PPS”), a non-profit organization that seeks to improve the quality of life in Providence through historic preservation and the enhancement of the built environment. He informs that Grow Smart and PPS regularly interact and collaborate on different projects. He represents that he interacts with PPS, as an employee of Grow Smart, on these projects. However, he states that Grow Smart has no involvement or financial interest in the GE Plant Appeal pending before the Zoning Board. He further states that, notwithstanding his interactions with PPS related to his private employment at Grow Smart, he believes he can participate in the Zoning Board’s review of the GE Plant Appeal in a fair and objective manner.
Based upon the above representations, the Petitioner seeks advice as to whether he is required to recuse from the Zoning Board’s consideration of the GE Plant Appeal given his employer’s work with PPS. If he is required to recuse, the Zoning Board will not be able to reach a quorum given that Mr. Greenfield will be recusing from the matter.
Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). The Code also prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any person by which he is employed or whom he represents. Section 36-14-5(d). Finally, a public official must recuse himself from any matter in which his business associate appears before the municipal agency of which he is a member or by which he is employed. Section 36-14-5(f); Commission Regulation 36-14-5002(a)(2). A “business associate” is defined as an individual or business entity joined together with another person to achieve a common financial objective. Section 36-14-2(3), (7).
In prior analogous advisory opinions, the Commission has concluded that a public official is not a business associate of a third entity with which his employer had an independent business association, in the absence of an independent financial nexus between the public official and the third entity. For example, in Advisory Opinion 2003-72 the Commission opined that a Westerly Town Council member, who was an employee of an engineering firm, was not a business associate of a developer that hired his employer. Similarly, in Advisory Opinion 2001-15 the Commission opined that a Coventry Town Council member was not a business associate of a firm that was hired for a school construction project in Coventry, notwithstanding that his private employer was recently hired by that same firm to work on a construction project in Warwick. See also A.O. 2012-22 (opining that a member of the Smithfield Zoning Board was not required to recuse from his board’s consideration of a special use permit involving a coffee shop that was his employer’s tenant’s competitor, given that the petitioner was not a business associate of his employer’s tenant); A.O. 2011-36 (opining that a Providence City Plan Commission member was not a business associate of his tenant’s client absent an independent financial nexus between the petitioner and the individual client); A.O. 2008-5 (opining, inter alia, that a member of the Rhode Island House of Representatives, whose private employer leased space to a lobbying firm, was not a business associate of that lobbying firm).
In the present matter, the Petitioner is an employee of Grow Smart. He states that Grow Smart collaborates on several projects with PPS and he interacts with PPS on behalf of his employer. He further represents that Grow Smart has no financial interest or involvement in the GE Plant Appeal before the Zoning Board. Based upon the facts represented above, it is clear that Grow Smart and PPS are “business associates” as that term is defined in the Code of Ethics. However, absent an independent financial nexus directly between the Petitioner and PPS, we opine that the Petitioner and PPS are not business associates because their relationship is too attenuated to require recusal under the Code of Ethics.
Furthermore, even if we concluded that the Petitioner was a business associate of PPS, we would likely still permit him to participate in the Zoning Board’s consideration of the GE Plant Appeal by invoking the Rule of Necessity. The Zoning Board, which has five active members and one alternate member, requires a quorum of five members for each meeting and for the consideration of each matter. Mr. Greenfield, another member of the Zoning Board, has stated that he will recuse from this matter based upon his ongoing attorney-client relationships with three of the appellants to the GE Plant Appeal. Under the Code of Ethics, it is clear that Mr. Greenfield is a business associate of his clients and, thus, he is required to recuse from any Zoning Board matters that will have a financial impact upon his clients. See A.O. 2013-21 (stating that the Commission has consistently found that the attorney-client relationship constitutes a “business associate” relationship as that term is defined in the Code of Ethics). With respect to the Code of Ethics, Mr. Greenfield’s direct business association with three appellants is much more significant than the Petitioner’s indirect connection to PPS through his employer, Grow Smart. Moreover, the Petitioner states that he can participate in the Zoning Board’s consideration of the GE Plant Appeal in a fair and objective manner.
Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from participating in the Zoning Board’s consideration of an appeal in which one of the appellants is his employer’s business associate.
This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation.
Commission Regulation 36-14-5002
Related Advisory Opinions:
 The Providence Home Rule Charter only provides for the appointment of one alternate member notwithstanding that R.I. Gen. Laws § 45-24-56(b) provides for municipal zoning boards to be comprised of five active members and two alternate members. Providence Home Rule Charter, Art. X, Sec. 1009.
 R.I. Gen. Laws § 45-24-57(2)(i) states:
Five (5) active members are necessary to conduct a hearing. As soon as a conflict occurs for a member, that member shall recuse himself or herself, shall not sit as an active member, and shall take no part in the conduct of the hearing. Only five (5) active members are entitled to vote on any issue.
 The “Rule of Necessity” can only be invoked by the Ethics Commission, through the issuance of advisory opinion, after the Commission has issued an advisory opinion to each individual board member with a potential conflict and determined that the number of members required to recuse renders the public body unable to reach a quorum. At this time, it is unnecessary to authorize a “Rule of Necessity” exception because the Commission has concluded that the Petitioner is not a business associate of the Providence Preservation Society and, thus, is not required by the Code of Ethics to recuse from the Zoning Board’s consideration of the GE Plant Appeal. See A.O. 2011-38 and A.O. 2011-37 (instructing two members of the Charlestown Town Council to recuse from a particular matter and declining to invoke the “Rule of Necessity” until the Commission ascertained through the issuance of an advisory opinion to a third Town Council member, who had been recusing from the same matter, that she was also required by the Code of Ethics to recuse).