Advisory Opinion No. 2004-17

Re: John R. Cook

QUESTION PRESENTED

The petitioner, a member of the Tiogue Fire District Council, a municipal elected position, requests an advisory opinion as to whether he may simultaneously serve as a volunteer firefighter in the same district.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Tiogue Fire District Council, a municipal elected position, may simultaneously serve as a volunteer firefighter in the same district provided that the petitioner recuses on any matters that could financially impact him, including matters concerning his compensation as a volunteer firefighter.

At the Tiogue Fire District’s February 9, 2004 meeting, the taxpayers elected the petitioner to be a member of the Tiogue Fire District Council. As a member of the Council, the petitioner receives a quarterly stipend in the amount of $231.00. The petitioner represents that the Council is responsible for, among other things, establishing and maintaining an annual budget for the district, setting a tax rate, issuing purchase orders, negotiating contracts and handling discipline and personnel issues. According to the petitioner, the Council has authority over any volunteer firefighters and six (6) paid firefighters. The petitioner also serves as a volunteer firefighter in the Tiogue Fire District. While it is a volunteer position, petitioner informs that he receives a stipend based upon the number of calls attended. For instance, last quarter the petitioner received a stipend of approximately $78.00. The petitioner represents that as a member of the Council he will not participate in any matters affecting his compensation as a volunteer firefighter or any other matter affecting volunteer firefighters within the Tiogue Fire District, including disciplinary and personnel matters.

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. See R.I. Gen. Laws § 36-14-5(a). An official will have an interest in substantial conflict with his official duties if he has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to himself, a family member, his employer or a business associate. See R.I. Gen. Laws § 36-14-7(a). Section 36-14-5(b) further provides that a public official may not accept other employment which would impair his independence of judgment or require him to disclose confidential information acquired in the course of his official duties. He also may not use his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents. See R.I. Gen. Laws § 36-14-5(d). In addition, he may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. See R.I. Gen. Laws §§ 36-14-5(e)(1) and (2).

The aforementioned provisions of the Code of Ethics do not create an absolute bar to simultaneous service as a member of the Tiogue Fire District Council and as a volunteer firefighter in the same district. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out an official’s duties in the public interest.

Given the petitioner’s willingness to recuse on Council matters affecting the district’s volunteer firefighters, it does not appear likely that the petitioner’s volunteer activity would impair his independence of judgment as to his official duties as a member of the Council. Absent some direct financial nexus between the petitioner’s actions as a member of the Tiogue Fire District Council and his actions as a volunteer firefighter in the same district, no inherent conflict of interest would preclude such simultaneous service.

Further, since the petitioner’s duties as a member of the Tiogue Fire District Council and as a volunteer firefighter in the same district are separate and distinct, there is no indication that such simultaneous service, in and of itself, creates a substantial conflict within the meaning of § 36-14-7(a). However, the petitioner is required to recuse in circumstances that he can reasonably foresee will result in a financial gain or loss to himself, a family member, his employer or a business associate. See R.I. Gen. Laws § 34-14-5(a). In such case, the petitioner should recuse from participation and complete a statement of conflict of interest in accordance with R.I. Gen. Laws § 36-14-6.

Finally, the petitioner is advised that this opinion solely addresses whether the Code of Ethics prohibits him from simultaneously holding these two public positions. This opinion does not, and cannot, address whether any other statute, charter, ordinance, ruling or policy prohibits such simultaneous service.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(e)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2004-2

2002-57

99-149

99-73

98-132

Keywords:

Dual Public Roles