Advisory Opinion No. 2009-8

Rhode Island Ethics Commission

Advisory Opinion No. 2009-8

Re: Barbara Rich

QUESTION PRESENTED

The Petitioner, a member of the Smithfield Land Trust, a municipal appointed position, requests an advisory opinion regarding whether she must recuse from matters before the Land Trust concerning the purchase of a conservation easement from Maxine Cavanagh, given that Councilwoman Cavanagh was a member of the Smithfield Town Council when the Petitioner was appointed to the Land Trust.

RESPONSE

It is the opinion of the Ethics Commission that nothing in the Code of Ethics requires that the Petitioner, a member of the Smithfield Land Trust, a municipal appointed position, must recuse from matters before the Land Trust concerning the purchase of a conservation easement from Maxine Cavanagh, notwithstanding the fact that Councilwoman Cavanagh was a member of the Smithfield Town Council when the Petitioner was appointed to the Land Trust.

The Petitioner was appointed to the Smithfield Land Trust (“Land Trust”) in 2005 by the Smithfield Town Council (“Town Council”).  At the time of her appointment, Maxine Cavanagh was a member of the Town Council.  The Petitioner represents that currently, the Land Trust, a municipal public entity, is seeking Town Council authorization to offer to purchase a conservation easement on property owned by Town Council member Maxine Cavanagh and her husband.  She further represents that the Land Trust first became interested in purchasing a conservation easement on Councilwoman Cavangh’s real property in May of 2008.  At that time, Councilwoman Cavanagh was no longer a member of the Town Council, her term having expired in November of 2006.  Subsequently, in August of 2008, prior to Councilwoman Cavanagh’s reelection to the Town Council, the Land Trust received authorization from the Town Council to commission an appraisal of said property and voted in October, 2008, to seek Town Council authorization to attempt to purchase a conservation easement on the property.

On January 6, 2009, the Land Trust came before the Town Council during an executive session meeting of the Town Council to request authorization to purchase said easement; at this time, Councilwoman Cavanagh recused from the proceedings and the Town Council voted to table the matter, pending issuance of an advisory opinion from this Commission.  Indeed, Councilwoman Cavanagh has separately requested an advisory opinion.  As such, the Petitioner requests an advisory opinion

as to what limitations and prohibitions the Code of Ethics places on her in this matter, given that Councilwoman Cavangh was a member of the Town Council when the Petitioner was appointed to the Land Trust.

As a member of the Land Trust, the Petitioner may not participate in any matter in which she has an interest, financial or otherwise, that 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).  An official will have an interest in substantial conflict with her official duties if it is reasonably foreseeable that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, a family member, a business associate, an employer, or any business which the public official represents.  See  R.I. Gen. Laws § 36-14-7(a) and Commission Regulation 36-14-7001.  Section 36-14-5(d) further prohibits an official from using her position or confidential information received though her position to obtain financial gain, other than that provided by law, for herself, her business associates, or any person within her family.

In the circumstances of this Petitioner’s set of facts, the fact that Councilwoman Cavanagh was a member of the Town Council when the Petitioner was appointed to the Land Trust does not create a business association or employer/employee relationship between them, nor is there anything to indicate that this Petitioner will incur a financial benefit or loss to herself or any family member as a result of her discussion or voting on this matter;  in short, there is nothing present in this Petitioner’s set of facts to implicate any of the prohibitions set forth in the Code of Ethics.

Thus, it is the opinion of the Ethics Commission that, based on the facts as presented by this Petitioner and barring any other relationship that would implicate the prohibitions found within the Code of Ethics, the Petitioner is not prohibited from participating in the Land Trust’s discussion and voting regarding the purchase of a conservation easement from Councilwoman Cavanagh and her husband.  

Finally, the Petitioner is advised that this opinion solely addresses the application of the Code of Ethics.  We note that this opinion does not address whether any municipal charter provision or ordinance prohibit such simultaneous service.  Such matters are outside the jurisdiction of the Ethics Commission and, as a result, cannot be addressed in this advisory opinion.

Code Citations :

36-14-5(a)

36-14-5(d)

36-14-7(a)

Commission Regulation 36-14-7001

Keywords :

Recusal