Advisory Opinion No. 2001-20

Re: The Honorable Robert B. Jacquard

QUESTION PRESENTED

The petitioner, a State Representative, a state elected position, who is employed as a police officer for the City of Cranston, requests an advisory opinion as to whether he may sponsor and advocate the passage of legislation that would allow the City of Cranston to finance the unfunded liability in its police and fire pension system given that a) upon retirement he would be a pensioner receiving payments from the system, and b) the proposed legislation would not affect whether and to what extent he would receive future pension benefits from the system.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a State Representative, a state elected position, who is employed as a police officer for the City of Cranston, from sponsoring and/or advocating the passage of legislation that would allow the City of Cranston to finance the unfunded liability in its police and fire pension system. First, although the petitioner, upon retirement, would be a pensioner receiving payments from the system, the proposed legislation would not affect whether and to what extent he would receive future pension benefits from the system. As a result, any benefit that would accrue to him as a result of the proposed legislation is, at best speculative and remote. In addition, the legislation is broad-based in that it would protect, in the first instance, all of the taxpayers in the City of Cranston.

Under the Code of Ethics, the petitioner 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 in the public interest. Substantial conflict is defined as a “direct monetary gain or a direct monetary loss” that accrues, by virtue of the public official’s activity, to that individual, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, the Code provides that a public official or employee may not use his office to obtain financial gain for himself, his family, business associates, employer, or business that he represents other than as provided by law. See R.I. Gen. Laws § 36-14-5(d). Finally, pursuant to R.I. Gen. Laws § 36-14-5(b), a public official may not accept other employment which will either impair his independence of judgment as to his official duties or require him, or induce him, to disclose confidential information acquired by him in the course of his official duties.

The petitioner advises that he is an elected State Representative. He also is employed as a police officer in the City of Cranston and, accordingly, a participant in the City's police and fire pension system. He wishes to sponsor and advocate in the General Assembly legislation that would allow the City of Cranston to finance the unfunded liability in its police and fire pension system through the issuance of bonds, up to an amount not exceeding one hundred fifty million dollars ($150,000,000). The legislation specifically requires that prior to the issuance of such bonds the City Council or other authorized body "shall institute proceedings to determine that the issuance of the pension obligation bonds will result in a financial benefit to the City." Nothing in the proposed legislation would impact whether and to what extent the petitioner would receive payments from the pension system.

The Commission has concluded that some relationships are too remote to implicate the provisions of the Code of Ethics. For example, in Advisory Opinion 96-27, the Commission concluded that a Cumberland Housing Authority Chair could privately represent Housing Authority vendor’s employee in unrelated personal injury matter particularly since it would not impact the Housing Authority and that he had not used his public position in order to garner the representation of the vendor's employee. See also A.O. 99-27 (Narragansett Planning Board member may participate in the review of an application notwithstanding the fact that the applicant's lawyer is legal counsel to the petitioner's private employer since his relationship with the attorney and the applicant does not trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(d).); A.O. 96-6 (Town councilor may participate in matter concerning his employer’s customer unless he has direct participation with customer in private capacity or the participation of the Councilor in a decision of the bank that directly affects the customer, or the involvement of a customer whose business substantially impacts the economic fortunes of the bank); and A.O. 2000-39 (Burrillville Town Councilor may participate in discussions and vote on the Council’s consideration of a conflict between landowners and the owner of Pascoag Lake, despite the fact that her spouse is employed by the Episcopal Diocese of Rhode Island, which owns property abutting the Lake since the petitioner’s relationship with the Diocese is too remote to implicate the prohibitions set forth in the Code of Ethics and there is no evidence that the Council’s consideration of the issue would impact her spouse’s employment).

In addition, here the proposed legislation is broad-based, specifically protecting in the first instance the taxpayers of the City of Cranston. The language of the proposed legislation requiring that, prior to the issuance of any such bonds, the City Council (or other authorized body) must determine that to do so would result in a financial benefit to the City underscores that point. Also, as stated above, nothing in the proposed legislation would impact whether and to what extent the petitioner would receive payments from the pension system.

After considering the relevant provisions of the Code of Ethics and past advisory opinions, we conclude that the petitioner does not have a financial interest in the proposed legislation that is reasonably foreseeable. At best any interest that could be gleaned would be speculative and remote. The relevant provisions of the Code, namely sections 5(a) and 5(d), do not require recusal for such matters unless it is reasonably forseeable that, in this instance, an elected official would be financially impacted by the proposed legislation. That conclusion is reinforced by the broad-based nature of the proposed legislation.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

2000-39

2000-25

99-105

99-79

99-28

99-27

96-105

96-27

96-6

95-12

93-28

91-34

Keywords:

Dual Public Roles

Financial Interest