Advisory Opinion No. 2010-14 Rhode Island Ethics Commission Advisory Opinion No. 2010-14 Re: Nancy L. Freeman QUESTION PRESENTED The Petitioner, a Senior Environmental Scientist with the Rhode Island Department of Environmental Management (“DEM”), a state employee position, who is also a member of the Westerly Land Trust, a private non-profit entity, requests an advisory opinion regarding what prohibitions the Code of Ethics places on her, if any, if she provides the Land Trust with professional and technical advice for permit applications which the Land Trust then submits to DEM. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a Senior Environmental Scientist with the Rhode Island Department of Environmental Management (“DEM”), a state employee position, may not review permit applications submitted by the Westerly Land Trust to DEM if she provides the Land Trust with professional and technical advice for permit applications. The Petitioner is a Senior Environmental Scientist with the Rhode Island Department of Environmental Management (“DEM”). She states that her responsibilities in this capacity include supervising an environmental scientist, conducting environmental evaluations for permit applications, developing reports having professional recommendations and permit restrictions, providing expert testimony for hearings and court proceedings, and coordinating the efforts of DEM with federal, state and municipal authorities. Additionally, the Petitioner’s spouse is a Supervising Environmental Scientist at the Rhode Island Coastal Resources Management Council (“CRMC”). In her private capacity, the Petitioner and her spouse are dues-paying members of the Westerly Land Trust (“Land Trust”), a private non-profit entity. She states that on occasion, the Land Trust may submit applications to CRMC and DEM which typically involve preserving land for environmental protection, providing public access to preserved lands, and creating proposals for environmental restoration activities. She states that she may provide the Land Trust with professional or technical advice regarding how best to meet CRMC and DEM policies, rules and regulations. She represents that this advice may include the identification of wetlands and other natural resources which are subject to state regulation and advice as to the identification and application of pertinent rules and regulations and how to best address them. The Petitioner states that neither she nor her spouse will prepare any application on behalf of the Land Trust, nor will either of their signatures appear on any application or supporting documents. The Petitioner states that if she provides technical or professional advice for applications submitted to DEM by the Land Trust, she will remove herself from the review process on any applications to DEM by the Land Trust, and notify her superior. Additionally, the Petitioner states that she may assist the Land Trust with applications to DEM for open space grants, habitat restoration funding and similar endeavors. The Petitioner states that she does not have any involvement in her public capacity with any type of grants or funding administration, and that such requests are reviewed by DEM personnel that are not subject to her review or control. Finally, the Petitioner states that neither she nor her spouse will receive compensation or stand to make any financial gain or benefit from assisting the Land Trust in the various applications. Given this set of facts, the Petitioner requests an advisory opinion as to what prohibitions, if any, the Code of Ethics places on her in carrying out her public duties as a DEM employee. The Code of Ethics provides that the Petitioner shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction that is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the Petitioner has reason to believe or expect that she or any family member or business associate, or any business by which she is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. See R.I. Gen. Laws § 36-14-7(a). Section 5(b) of the Code of Ethics prohibits a person subject to the Code from accepting other employment that will impair her independence of judgment as to her official duties or require or induce her to disclose confidential information acquired in the course of her official duties. See R.I. Gen. Laws § 36-14-5(b). Additionally, the Code provides that the Petitioner shall not in any way use her public office or confidential information received through her holding any public office to obtain financial gain, other than that provided by law, for herself, a business associate or any business by which the Petitioner is employed. See R.I. Gen. Laws § 36-14-5(d). A "business associate" is an individual or business entity joined together with another individual or business entity to achieve a common financial objective. See R.I. Gen. Laws § 36-14-2(3); 36-14-2(7). Here, the Petitioner is both a general member of the Land Trust and will be providing the Land Trust with professional services, albeit unpaid, in the form of professional and technical advice regarding compliance with regulatory requirements, wetlands identification, and other matters. It is the opinion of the Ethics Commission that such a relationship constitutes a business association, as that term is defined in R.I. Gen. Laws § 36-14-2(3). Accordingly, the Petitioner is prohibited from participation in DEM’s review or decision-making regarding matters involving the Land Trust, pursuant to R.I. Gen. Laws § 36-14-5(a), (d) and (f). The Petitioner’s independence of judgment will be impaired if called upon to review an application in which she herself has advised the Land Trust. See R.I. Gen. Laws § 36-14-5(b). Code Citations: § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-7(a) Keywords: Business Associate Private Employment