Advisory Opinion No. 2016-29

Rhode Island Ethics Commission

Advisory Opinion No. 2016-29

Approved: September 13, 2016

Re:  Robert B. Boyer, PLS

QUESTION PRESENTED:

The Petitioner, a member and Chairman of the West Warwick Arctic Village Redevelopment Agency, a municipal appointed position, requests an advisory opinion regarding the application of the Code of Ethics to his participation in matters before his agency, given his business associations, and those of his family members, with persons who may be involved with, or impacted by, such matters.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member and Chairman of the West Warwick Arctic Village Redevelopment Agency, a municipal appointed position, must recuse from any matters before his agency that involve or financially impact himself, his current business associates, his children, or any of their individual or combined business ventures.  The Petitioner is not required to recuse from matters that involve or impact his prior business associates, provided that there is no specific future business relationship anticipated.  He is also not required to recuse from matters involving or impacting persons or entities that are doing business with the Petitioner’s children on other projects not under review by his agency.

The Petitioner is a member and the Chairman of the West Warwick Arctic Village Redevelopment Agency (“AVRA”).  Arctic Village is the commercial center of West Warwick with buildings that, in recent years, have become vacant and fallen into disrepair.  The five-member AVRA was established through the enactment of an ordinance in 2014 by the West Warwick Town Council to oversee the “elimination and prevention of blighted and substandard areas and their replacement through well-planned, integrated, stable, safe and healthful neighborhoods . . . .”  West Warwick Ordinance of the Town Council, No. 2014-4, at p.2.  Among its powers and responsibilities, the AVRA reviews proposals for the development of land and buildings in the Arctic Village Redevelopment Area and makes decisions regarding site location and positioning, building design and location, parking, lighting, landscaping, utility locations, signage, and the application of eminent domain.

In his private capacity, the Petitioner has been a professional land surveyor since 1963. He states that in 1986 his son, Mark D. Boyer, PLS, acquired the Petitioner’s surveying business and has operated it as Boyer Associates ever since.  The Petitioner states that although he has continued to act as a freelance surveyor since then, he is not an employee of Boyer Associates.  The Petitioner also notes that another of his sons owns a small excavating business and his daughter is an employee and corporate officer of a large plumbing and heating company.  These three offspring have formed a company known as Bratt Bros. LLC (“Bratt Bros.”), which is currently developing property in the southern part of West Warwick that is not within the Arctic Village Redevelopment Area.  The Petitioner represents that he is not an officer, director, employee or independent contractor of Bratt Bros. and that, in fact, he has no financial relationship whatsoever with the business.  He states that he does, from time to time, offer his children professional advice and guidance free of charge.

The Petitioner notes that many businesses and individuals with whom he has worked or consulted for over the years are likely to come before the AVRA seeking approval of development plans.  He also represents that it is likely that businesses or individuals who are currently contracting with his adult children and their businesses (particularly Bratt Bros.) on development projects outside of the Arctic Village Redevelopment Area will likely come before the AVRA seeking review and approval of unrelated projects within Arctic Village that do not involve his children.  He asks for guidance as to the application of the Code of Ethics to such situations.

Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, which 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 occurs if he has reason to believe or expect that he, any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity or employment.  Section 36-14-7(a).  Business associates are defined as individuals or entities joined together to “achieve a common financial objective.”  Section § 36-14-2(3). 

A public official is further prohibited by the Code from using his public office or position, or confidential information received through his position, to obtain financial gain, other than that provided by law, for himself, a business associate, employer or family member.  Section 36-14-5(d).  Additionally, Commission Regulation 36-14-5002 (“Regulation 5002”) requires a public official to recuse himself from participation when a business associate or any person within his family appears or presents evidence or arguments before his public agency.  Regulation 5002(a)(1).

Applying these provisions of the Code of Ethics, it is clear that that Petitioner must recuse from any AVRA matters that involve or financially impact himself, his current business associates or any members of his family, including his adult children.  In his letter requesting an advisory opinion, the Petitioner did not raise any particular matters coming before AVRA that might involve such conflicts of interest.  Nevertheless, given his and his family members’ substantial involvement in real estate development he should remain diligent in identifying potential conflicts and recuse as necessary consistent with section 36-14-6.

However, while the Code clearly prohibits the Petitioner from participating in matters directly affecting his children and their business ventures, the Code does not generally require a public official to recuse from participating in matters that involve or financially impact a family member’s business associate, unless there is also a corresponding benefit flowing to that family member.  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).  Applying this reasoning, the Petitioner is not required by the Code to recuse from AVRA matters that involve or impact his children’s business associates, provided that his children are not involved in the AVRA matter or impacted by AVRA’s decision-making.

We also note that the recusal provisions of the Code of Ethics do not apply to matters that involve or impact the Petitioner’s former business associates, provided that the business relationship between the Petitioner and the other party has ended and there is no specific future business relationship anticipated between the parties.  See A.O. 2013-21 (opining that a member of the State Labor Relations Board, a private attorney, was not required to recuse from matters involving his former law client provided that the representation had concluded, that all outstanding legal fees were paid in full, and there was no reasonable likelihood of reestablishing an attorney/client relationship in the foreseeable future).  See also A.O. 2005-56 (opining that the Executive Assistant in the Office of the Health Insurance Commissioner (“OHIC”) was not prohibited from participating in two matters related to Blue Cross & Blue Shield of Rhode Island, notwithstanding that he had previously represented Blue Cross in matters unrelated to those over which the OHIC had jurisdiction).  Consistent with these past opinions, the Petitioner need not recuse when one of his former business associates appears before the AVRA or stands to be financially impacted by a matter being decided by the AVRA.

In summary, the Petitioner must recuse from any matters before the AVRA that involve or financially impact himself, his current business associates, his children, or any of their individual or combined business ventures.  The Petitioner is not required to recuse from matters that involve or impact his prior business associates, provided that there is no specific future business relationship anticipated.  He is also not required to recuse from matters involving or impacting entities or individuals who are doing business with the Petitioner’s children on other projects unrelated to the AVRA and the Arctic Village.

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)

§ 36-14-5(f)

§ 36-14-7(a)

Commission Regulation 36-14-5002

Commission Regulation 36-14-5004

Related Advisory Opinions:

A.O. 2013-21

A.O. 2008-69

A.O. 2008-60

A.O. 2007-16

A.O. 2005-56

A.O. 99-28

Keywords: 

Business associate

Nepotism