Advisory Opinion No. 2015-45 Rhode Island Ethics Commission Advisory Opinion No. 2015-45 Approved: October 20, 2015 Re: Cynthia G. Wilson-Frias QUESTION PRESENTED : The Petitioner, Deputy Chief of Legal Services for the Public Utilities Commission, a state employee position, requests an advisory opinion as to whether the Code of Ethics prohibits her from working on a matter involving a utility that is represented by her spouse’s law firm. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Deputy Chief of Legal Services for the Public Utilities Commission, a state employee position, is not prohibited by the Code of Ethics from working on a matter involving a utility that is represented by her spouse’s law firm, based on the Petitioner’s representations that her spouse will not perform any work on the matter nor appear before the Public Utilities Commission. The Petitioner is Deputy Chief of Legal Services for the Public Utilities Commission (“PUC”) and has been serving in that capacity since October 2014. She represents that the PUC regulates public utilities in such areas as rates, terms and conditions of service, and disputes between the utility and renewable energy developers. The Petitioner states that she is one of three attorneys for the PUC. The Petitioner informs that, in her capacity as Deputy Chief of Legal Services, she reviews filings in matters that come before the PUC, conducts prehearing conferences, issues discovery, cross-examines witnesses at hearings, advises the PUC on legal matters, and drafts orders for the Commissioners to review before issuance. The Petitioner explains that, in these instances, she is not a decision maker. Additionally, the Petitioner represents that she serves as an arbitrator in some cases involving certain utilities and issues non-binding arbitration/mediation decisions. The Petitioner informs that she also acts as the PUC’s legislative liaison and participates in rulemaking proceedings. The Petitioner informs that her husband is a licensed and active attorney, and is currently employed as an associate at a Boston law firm. The Petitioner explains that, as an associate, her husband is a salaried employee of the firm and neither his salary nor any other compensation he receives is tied to the outcome of any case. She states that one of the firm’s clients is National Grid, a public utility that is subject to regulation by the PUC. The Petitioner represents that she is the attorney assigned to a National Grid rate matter that is currently pending before the PUC, and she has been working on the issues related to this matter since January 2015. She explains that National Grid recently retained her husband’s law firm for a portion of the case. She states that there are pending dispositive motions scheduled over the next few weeks for hearing before the PUC. However, she represents that her husband’s law firm will not assign him to perform any work on the matter nor will he appear before the PUC with respect to this matter. Given all of the above representations, the Petitioner asks whether the Code of Ethics prohibits her from continuing to work on this matter. 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 or employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if she has reason to believe or expect that she, any family member or business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity or employment. See R.I. Gen. Laws § 36-14- 7(a). A “person within . . . her family” includes the official or employee’s spouse. Section 36-14-2(1); Commission Regulation 36-14-5004(a)(2). Business associates are defined as individuals or entities joined together to “achieve a common financial objective.” Section § 36-14-2(3). The public official or employee is further prohibited from using her public office or position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself, a business associate or a family member. See R.I. Gen. Laws § 36-14-5(d). Additionally, Commission Regulation 36-14-5002 (“Regulation 5002”) requires a public official or employee to recuse herself from participation when any person within her family appears or presents evidence or arguments before her state or municipal agency. Regulation 5002(a)(1). Furthermore, the “Nepotism” regulation of the Code of Ethics, Commission Regulation 36-14-5004 (“Regulation 5004”), prohibits a public official or employee from participating in any matter as part of her public duties if she has reason to believe or expect that any person within her family is a party to or a participant in the same matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage. Regulation 5004(b)(1). As an initial matter, the relationship between the Petitioner and her spouse’s law firm, standing alone, is too remote to require her recusal under the Code of Ethics. It is the Petitioner’s spouse rather than the Petitioner herself who is an employee of the law firm. While the Code clearly prohibits the Petitioner from participating in matters directly affecting her spouse, the Code does not generally require a public official or employee to recuse from participating in matters resulting in a financial impact solely upon her spouse’s employer or business associate absent a corresponding benefit on the official or employee’s spouse. See A.O. 2008-69 (opining that a member of the Woonsocket Zoning Board of Review was permitted to participate in discussion and voting on a petition for a variance brought by CVS, notwithstanding the fact that the petitioner’s sister was employed as an accounting analyst with CVS, since his sister would not be financially impacted by the Zoning Board of Review’s decision regarding the petition); A.O. 2008-60 (advising that a member of the Woonsocket Zoning Board of Review could participate in discussion and voting on a petition for a variance brought by CVS, notwithstanding the fact that the petitioner’s son and nephew were employed in the shipping department of CVS); A.O. 2007-16 (opining that a member of the Johnston School Committee could participate in the Committee’s review of bills submitted by The Providence Center, a provider of special education services that employed the petitioner’s mother as an office assistant); and A.O. 99-28 (concluding that a Westerly Zoning Board of Review member could participate in the review of Bess Eaton Donut’s application to construct a drive-through window, notwithstanding his spouse’s employment in Bess Eaton’s bakery department, since his spouse would not be impacted by the Zoning Board’s decision). The Petitioner also represents that, as an associate, her husband is a salaried employee and neither his salary nor any other compensation he receives is tied to a particular outcome of this or any other case. Accordingly, there is no benefit or detriment that would inure to the Petitioner or her spouse as a result of the PUC’s decision making in the instant matter involving National Grid. Based on the Petitioner’s representations, there is no indication that her continuing to work on the same matter for which her spouse’s law firm has been retained will have any financial impact upon her spouse or herself. R.I. Gen. Laws § 36-14-5(a), 5(d), & Regulation 5004. Compare A.O. 2011-42 (opining that a North Providence Town Council member was required to recuse from Council discussions and decision making relative to the Town’s hiring of new firefighters, where the petitioner’s step-son had completed the required training academy and was arguably eligible to be hired). Finally, the Petitioner represents that her husband will not be assigned to or working on the same National Grid rate matter nor will he appear before the PUC. Accordingly, Regulation 5002(a)(1) does not require the Petitioner to recuse from the National Grid rate matter, given that her spouse will not be appearing before her agency. See A.O. 2006-18 (opining that a member of the Barrington Town Council was not required to recuse in matters relating to the Town’s acquisition of parkland for the creation of baseball fields for use by the Barrington Little League unless her spouse, a coach and board member of the Little League, makes an appearance before the Council on said matters). Based on the above, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from continuing to work on the rate matter involving National Grid, which is represented by her spouse’s law firm. The Petitioner is advised, however, that s hould these circumstances or her spouse’s status with the law firm change in a way that makes the financial impact to her spouse more likely, the Petitioner must recuse from the matter or seek further advice from the Commission. When recusing, the Petitioner must file a notice of recusal in accordance with § 36-14-6. 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(1) § 36-14-2(3) § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5002 Commission Regulation 36-14-5004 Related Advisory Opinions : A.O. 2011-42 A.O. 2008-69 A.O. 2008-60 A.O. 2007-16 A.O. 2006-18 A.O. 99-28 Keywords : Business Associate Family: Private Employment Family: Public Employment Nepotism