Advisory Opinion No. 2020-10 Rhode Island Ethics Commission Advisory Opinion No. 2020-10 Approved: February 11, 2020 Re: Robert A. Moreau QUESTION PRESENTED: The Petitioner, a member of the Town of Foster Economic Development Advisory Committee, a municipal appointed position, who is also a member of the Town of Foster Planning Board, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from simultaneously serving in both positions. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Town of Foster Economic Development Advisory Committee, a municipal appointed position, who is also a member of the Town of Foster Planning Board, a municipal appointed position, is not prohibited by the Code of Ethics from simultaneously serving in both positions. The Petitioner is a member, and serves as the Chair, of the Town of Foster (“Foster”) Economic Development Advisory Committee (“EDAC”). He states that the EDAC was created by Resolution #2019-02 (“Resolution”) of the Foster Town Council (“Town Council”) in March of 2019 to serve in an advisory capacity to the Town Council and to the Town Planning Board (“Planning Board”) in matters regarding community economic development. Among the duties of the EDAC identified in the Resolution are the following: to advise the Planning Board and Town Council in matters regarding community economic development; to recommend to the Planning Board and Town Council strategies that promote and enhance responsible economic growth in the community; to work to implement the goals and objectives of the Town’s Comprehensive Community Plan as they relate to economic development; to support promotional activities for the consistent and balanced economic development and growth of the industrial and commercial base of the Town of Foster; and to provide appropriate guidance and advocacy for new or existing business applicants regarding project viability and the regulatory approval process. The Petitioner represents that he was appointed to the EDAC by the Town Council in April of 2019. He explains that, pursuant to the Resolution, the EDAC was to have automatically disbanded on September 30, 2019, but that date was changed to April 1, 2020. He adds that he is not compensated for his public service on the EDAC. The Petitioner represents that, in December of 2019, he was appointed by the Town Council to the Planning Board, adding that he has served on both the EDAC and the Planning Board since that appointment. He explains that the Planning Board acts in an advisory capacity to the Town Council in all matters concerning the physical growth and development of the Town of Foster and affecting the health, safety, morals and general welfare of its residents. He states that he receives no compensation for his public service as a member of the Planning Board. The Petitioner represents that, on January 20, 2020, he was advised by a member of the Town Council that service on both the Planning Board and the EDAC created a conflict of interest. It is in the context of these facts that the Petitioner seeks guidance from the Ethics Commission as to whether the Code of Ethics prohibits him from simultaneously serving in both positions. 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 a public official has reason to believe or expect that he, any person within his family, his business associate or his employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). A public official must also recuse himself from participation when his business associate or employer, or a person authorized by his business associate or employer, appears or presents evidence or arguments before his municipal agency. Commission Regulation 520-RICR-00-00-1.2.1(A)(2) & (3) Additional Circumstances Warranting Recusal (36-14-5002). 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). A business is defined as “a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, trust or any other entity recognized in law through which business for profit or not for profit is conducted.” Section 36-14-2(2). Additionally, the Code of Ethics prohibits a public official from representing himself or any other person before a municipal agency of which he is a member, by which he is employed, or for which he is the appointing authority. Section 36-14-5(e)(1) & (2). A person represents himself or another person before an agency when he participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of that agency in his own favor or in favor of the person he represents. Section 36-14-2(12) & (13); Commission Regulation 520-RICR-00-00-1.1.4(A)(1) & (2) Representing Oneself or Others, Defined (36-14-5016). Further, a public official is prohibited from using his public office or confidential information received through his public office to obtain financial gain for himself, any person within his family, his business associate, or any business by which he is employed or which he represents. Section 36-14-5(d). Finally, a public official may not accept other employment that would impair his independence of judgment as to his official duties or require or induce him to disclose confidential information acquired by him in the course of his official duties. Section 36-14-5(b). In prior advisory opinions, the Ethics Commission has consistently concluded that the Code of Ethics does not create an absolute bar against a person’s simultaneous service in two different governmental entities, even if they are within the same municipality. Rather, the provisions of the Code require a matter-by-matter evaluation and determination as to whether substantial conflicts exist with respect to carrying out one’s official duties in the public interest. For example, in Advisory Opinion 2015-14, the Ethics Commission opined that a member of the Bristol Warren Regional School Committee (“School Committee”), who was also an alternate member of the Bristol Juvenile Hearing Board (“Hearing Board”), was not prohibited by the Code of Ethics from simultaneously serving in both positions. In that advisory opinion, the Ethics Commission determined that, given that neither the School Committee nor the Hearing Board was considered to be a “business” as that term is defined in the Code of Ethics, the “business associate” prohibitions that would otherwise constrain the petitioner while carrying out her public duties did not apply with respect to those two entities, despite their potential overlap relative to student discipline. See also A.O. 2010-57 (opining that the Chairman of the Board of Directors for the Coventry Fire District was not prohibited from simultaneously holding office as a member of the Coventry Town Council, given that neither the Fire District nor Town Council were considered “businesses” according to the definitions in the Code of Ethics, and that the “business associates” prohibitions that would have otherwise constrained the petitioner while carrying out his public duties did not apply with respect to those two entities); A.O. 2009-27 (opining that the Code of Ethics did not prohibit the petitioner from simultaneously serving as a municipal appointed member of both the East Providence Planning Board and the East Providence Historic District Commission, in addition to being an East Providence Police Officer, a municipal employee position, as a substantial conflict of interest was not apparent, notwithstanding the existence of some overlap between the positions). Similarly, here, there is no substantial conflict of interest apparent in the Petitioner simultaneously holding the positions of Chair of the EDAC and Planning Board member, notwithstanding some potential overlap in those public roles. Neither the EDAC (a municipal committee) nor the Planning Board (a municipal agency) is considered a “business entity” under the Code of Ethics. Therefore, neither the Petitioner’s membership on the EDAC, nor his membership on the Planning Board, constitutes a “business association” with either of those public bodies under the Code of Ethics. Accordingly, any impact upon the Planning Board by virtue of the Petitioner’s activity as Chair of the EDAC would not be considered impact upon a “business associate” under the Code of Ethics. The reverse is also true. Absent some direct financial impact upon himself, any person within his family, his business associate or his employer as a result of the Petitioner’s actions in either public role, no inherent conflict of interest would preclude such simultaneous service. Further, based on the facts as represented by the Petitioner, there is no indication that serving as both the Chair of the EDAC and as a member of the Planning Board would impair his independence of judgment as to his public responsibilities in either position or require him to disclose confidential information acquired by him in the course of his official duties in either role. Absent any other relevant fact that would implicate the Code of Ethics, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from simultaneously serving as Chair of the EDAC and as a member of the Planning Board, nor is he prohibited from appearing before the Planning Board in his capacity as Chair of the EDAC or participating in Planning Board matters that directly impact the EDAC. The Petitioner is advised, however, that if any matters should come before him as he is carrying out his duties in either of his public roles that may present any other potential conflict of interest that is not otherwise contemplated in this advisory opinion, or circumstances in which it is reasonably foreseeable that there will be a financial impact upon the Petitioner personally, any person within his family, his business associate, or his employer, he should either request further advice from the Ethics Commission or exercise the recusal provision found at section 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(2) § 36-14-2(3) § 36-14-2(7) § 36-14-2(12) § 36-14-2(13) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-5(e) § 36-14-6 § 36-14-7(a) 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002) Related Advisory Opinions: A.O. 2015-14 A.O. 2010-57 A.O. 2009-27 Keywords: Dual Public Roles