Advisory Opinion No. 2015-2 Rhode Island Ethics Commission Advisory Opinion No. 2015-2 Approved: January 13, 2015 Re: Michael W. Carroll, Esq. QUESTION PRESENTED: The Petitioner, a member of the Barrington Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Town Council’s review of its contract with the East Bay Rowing Club, given that he pays a fee for his dependent son to be on the East Bay Rowing Club team. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Barrington Town Council, a municipal elected position, is not prohibited by the Code of Ethics from participating in the Town Council’s review of its contract with the East Bay Rowing Club, notwithstanding that he pays a fee for his dependent son to be on the East Bay Rowing Club team. The Petitioner is a member of the Barrington Town Council (“Town Council”). He represents that the Town Council is scheduled in early 2015 to consider modifications to its contract with the East Bay Rowing Club (“EBR”), a private club that rows on the Barrington River and within Hundred Acre Cove.[1] Given EBR’s current lack of a boat house, dock or any facilities, it contracts with the Town of Barrington (“Town”) to store its boats on a trailer that is parked on Town land near the Walker Farm public boat launch. At this time, most of the terms of the contract have been agreed to, including the payment of any fees to the Town and the number of boats to be stored on Town property. However, the Town and EBR have yet to agree on whether EBR will be restricted from rowing in certain areas of the Barrington River and Hundred Acre Cove. The Petitioner represents that his son, who is a high school student, is a member of EBR’s rowing team. The Petitioner states that he pays a fee to EBR so his son can be a member of the team.[2] He informs that he has no other interests or involvement with EBR beyond paying his son’s rowing team fee. He states that he is neither an officer nor a member of EBR’s Board of Directors. He states that he will not be financially impacted by any modifications to the terms of EBR’s contract with the Town. Cognizant of the Code of Ethics, the Petitioner seeks guidance as to whether he is required to recuse from the Town Council’s consideration of EBR’s contract modification, given that he pays a fee to EBR for his son to be a member of the rowing team. 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 of Ethics 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 business by which he is employed or whom he represents. Section 36-14-5(d). Under the Code of Ethics, a business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7). The Commission has previously stated that persons are “business associates” of the entities for which they serve as either officers or members of the Board of Directors, or in some other leadership position that permits them to affect the financial objectives of the organization. See e.g. A.O. 2012-28 (opining that a Tiverton Planning Board member, who was also a member of the Board of Directors of the Tiverton Yacht Club (“TYC”), was a business associate of the TYC and, therefore, was required to recuse from participating in the Planning Board’s consideration of a proposed amendment to the Tiverton Zoning Ordinance that was requested by the TYC). In contrast, however, the Commission has generally held that mere membership in an organization, as opposed to the holding of a position as a director, officer, or other position of leadership, does not create a business association requiring recusal. See A.O. 2013-26 (opining that a Newport City Council member was not prohibited from participating in City Council matters involving the Newport Yacht Club (“Yacht Club”), notwithstanding that her husband was an individual member of the Yacht Club and paid annual dues to the Yacht Club, but was not an officer or member of the Yacht Club’s Board of Directors); A.O. 2009-39 (opining that the Barrington Town Planner’s general membership in the Bayside Family YMCA (“YMCA”), where he did not serve in any leadership position, did not constitute a business associate relationship with the YMCA and, thus, he was permitted to participate in Barrington’s review of the YMCA development proposal and plans). In the present matter, the Petitioner pays a fee to EBR so his son can be a member of its rowing team. The Petitioner states that he has no financial interest in EBR and will not be financially impacted by any modifications to EBR’s contract. He further represents that he is neither an officer of EBR nor a member of its Board of Directors. Accordingly, the Petitioner’s payment of his son’s rowing team fee to EBR does not constitute a “business associate” relationship as that term is defined in the Code of Ethics. For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from participating in the Town Council’s review of its contract with the East Bay Rowing Club, notwithstanding that he pays a fee for his dependent son to be on the East Bay Rowing Club team. 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. Code Citations: § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) Related Advisory Opinions: A.O. 2013-26 A.O. 2012-28 A.O. 2009-39 Keywords: Business Associate Family [1] EBR’s mission is “to develop the opportunity and secure the equipment and venue for the greater East Bay community to participate in rowing and paddle sports.” EBR offers learn to row classes, competitive junior programs, junior camps, and private lessons. http://eastbayrowing.org/ [2] The Petitioner states that EBR charges a fee to members of the rowing team seasonally, i.e. fall, winter, spring.