Advisory Opinion No. 2015-35 Rhode Island Ethics Commission Advisory Opinion No. 2015-35 Approved: August 18, 2015 Re: Jeanne M. Boyle QUESTION PRESENTED: The Petitioner, the Planning Director for the City of East Providence, a municipal employee position, who also serves as the Executive Director of the East Providence Waterfront District Commission, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from participating in the City’s and/or the Waterfront Commission’s evaluation of zoning relief sought by Express Mattress Recyclers, LLC, given that she is also a member of the Rhode Island Resource Recovery Corporation, a state appointed position. RESPONSE: It is the opinion of the Ethics Commission that the Petitioner, the Planning Director for the City of East Providence, a municipal employee position, who also serves as the Executive Director of the East Providence Waterfront District Commission, a municipal appointed position, is not prohibited by the Code of Ethics from participating in the City’s and/or the Waterfront Commission’s evaluation of zoning relief sought by Express Mattress Recyclers, LLC, notwithstanding that she is also a member of the Rhode Island Resource Recovery Corporation, a state appointed position. The Petitioner is the Planning Director for the City of East Providence (“City”), a position that she has held since 1990. She informs that the Planning Department reviews development projects for compliance with the City’s Code of Ordinances and Comprehensive Plan, supports community and economic development activities, administers grant and housing programs, and performs other related activities. She further states that the Planning Department provides staff support to a number of City commissions including the East Providence Planning Board (“Planning Board”). The Petitioner is also the Executive Director of the East Providence Waterfront District Commission (“Waterfront Commission”).[1] She represents that the Waterfront Commission’s enabling legislation provides that the City’s Planning Director shall be an ex-officio non-voting member of the Waterfront Commission. However, after its establishment in 2004, the Waterfront Commission also decided to appoint the Petitioner to serve as its Executive Director in order to more effectively utilize her expertise for the administration of this new public entity. She states that the Waterfront Commission is “charged with overseeing, planning, implementing and administering the development of areas within the East Providence Waterfront special development district.” East Providence Code of Ordinances § 19-471. She informs that all development in the waterfront district is subject to the review and approval of the Waterfront Commission, which, like the rest of the City, applies the City’s Zoning Ordinance. She states that, as Executive Director, she acts in an administrative and ex-officio capacity only and does not vote on Waterfront Commission decisions.[2] She states that she receives no compensation for her work as Executive Director. In addition to her public service for the City and the Waterfront Commission, the Petitioner is also a Commissioner of the Rhode Island Resource Recovery Corporation (“RIRRC”), having been appointed to that position by Governor Lincoln D. Chafee in July 2014. She states that the RIRRC is a quasi-public state agency, located in the Town of Johnston, which manages the State’s recycling program and also owns and operates the Central Landfill and Materials Recycling Facility.[3] She informs that the powers of RIRRC are vested in its Board of Commissioners (“Board”). She states that she receives no compensation for her service on the RIRRC Board. The Petitioner informs that, in March 2015, Express Mattress Recyclers, LLC (“Mattress Recyclers”) sought a certificate of zoning from the City to determine if the recycling of mattresses was permitted at its location of 310 Bourne Avenue, East Providence, which is in the waterfront district. The Petitioner represents that the Zoning Officer consulted with her relative to Mattress Recyclers’ application, in her capacity as Executive Director of the Waterfront Commission, prior to issuing a decision. She represents that, on April 9, 2015, the City issued a certificate of zoning to Mattress Recyclers, signed by both the Zoning Officer and the Petitioner as Executive Director of the Waterfront Commission, which stated that the recycling of mattresses was prohibited by section 19-96 of the City’s Zoning Ordinance.[4] Subsequently, while reviewing the materials for the RIRRC’s May 27, 2015 meeting, the Petitioner states that she noted an agenda item for the award of a new contract for mattress removal and recycling services to Goulin Trucking Co., Inc. (“Goulin Trucking”) of Warwick. She states that she recognized that the representative of Goulin Trucking, Cathy Goulin, was the same person who sought the certificate of zoning from the City on behalf of Mattress Recyclers in March. Given that she had participated in the Zoning Officer’s decision regarding Mattress Recyclers’ prior application to the City, and out of an abundance of caution, the Petitioner states that she recused from the RIRRC’s May 27, 2015 decision to award a contract to Goulin Trucking for mattress removal and recycling services within the state. Thereafter, the Petitioner represents that, as a result of the City’s finding that mattress recycling was a prohibited use within the City, on July 10, 2015, Bourne Holdings, the owners of the property where Mattress Recyclers’ facility is located, filed an application for conditional zoning approval/use variance with the Waterfront Commission to allow Mattress Recyclers to continue their operations at 310 Bourne Avenue. The Petitioner states that, in conjunction with Mattress Recyclers’ most recent application, questions were raised as to whether the Petitioner had a conflict of interest relative to Mattress Recyclers’ application, given her position as a member of the RIRRC Board, notwithstanding her recusal from participating in the RIRRC’s decision to award the contract to Goulin Trucking. Accordingly, the Petitioner represents that, since requesting this advisory opinion, she has been recusing from Waterfront Commission matters involving Mattress Recyclers. She states that, upon her recusal, the Waterfront Commission has authorized its planner, Roberta Groch, to fulfill the Executive Director’s duties relative to Mattress Recyclers requests for zoning relief.[5] Based upon the above representations, the Petitioner seeks guidance as to whether she may perform her official duties as Executive Director of the Waterfront Commission and Planning Director for the City relative to Mattress Recyclers’ requests for zoning relief, notwithstanding her position as a member of RIRRC. She represents that neither she nor any member of her family has any connection to Mattress Recyclers, Bourne Holdings or Goulin Trucking. She further represents that she does not have a financial interest in any of the matters relative to Mattress Recyclers. She states that her official duties, both for the Waterfront Commission and the City, involve performing administrative work, applying the relevant provisions of the City’s Comprehensive Plan and Zoning Ordinance, and making recommendations to the Waterfront Commission, Planning Board and Zoning Board. She informs that she can perform her duties, in all of her public capacities, in a fair and objective manner relative to matters involving Mattress Recyclers. Under the Code of Ethics, a public official shall not have any interest, financial or otherwise, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of her duties or employment in the public interest. Section 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that she, any person within her family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). A public official or employee is also prohibited from accepting other employment that would impair her independence of judgment as to her official duties or require or induce her to disclose confidential information acquired by her in the course of her official duties. Section 36-14-5(b). Additionally, the Code prohibits a public official from using her public office or confidential information received through her public office to obtain financial gain for herself, a family member, business associate, or any business by which she is employed or which she represents. Section 36-14-5(d). 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). 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). As an initial matter, given the fact that the RIRRC (a state agency), the Waterfront Commission (a municipal agency) and the City (a municipal agency) are public entities, they are not considered to be “businesses” as that term is defined in the Code of Ethics and, therefore, the Petitioner is not a “business associate” of any of those agencies. See § 36-14-2(8)(i) & (ii) (defining “state agency” and “municipal agency”). Furthermore, the Petitioner’s simultaneous association with all three of these public agencies does not automatically create a conflict of interest, even if the same person or business entity appears before or is a party to a matter before more than one of the public agencies with which the Petitioner is associated. The Ethics Commission previously considered a similar issue in Advisory Opinion 2011-29, in which it opined that a member of the Portsmouth Planning Board, who was also a civil engineer for the Rhode Island Department of Transportation (“DOT”), could participate in and vote on a development proposal pending before the Portsmouth Planning Board, notwithstanding that in her capacity as a DOT engineer, she had been reviewing the same property to ensure that the state’s property interests were protected. There, the petitioner represented that neither she nor anyone in her family was associated with the applicant, and she was not an abutter to the property in question. Therefore, there was no presumption of financial benefit or detriment to her by or because of any official activity she undertook as a Portsmouth Planning Board member. See also A.O. 2007-14 (opining that a member of the North Kingstown Town Council, who was also a member of a Quonset Development Corporation (“QDC”), could participate in and vote on a development proposal pending before the QDC even though he previously considered and voted on the matter before the Town Council). In the present matter, the question is whether the Petitioner can participate in matters that involve Mattress Recyclers that may come before her in her roles as Executive Director of the Waterfront Commission, the City’s Planning Director, and as a member of the RIRRC Board. Here, there is no indication, based upon the Petitioner’s representations, that her official duties for any of these public entities will result in a direct financial impact to her herself or members of her family, because she represents that neither she nor any member of her family has financial interest in or any involvement with the matters involving Mattress Recyclers, Bourne Holdings or Goulin Trucking. Furthermore, even assuming, arguendo, that the RIRRC has an interest in Mattress Recyclers’ ability to continue its operations in the City, the RIRRC, as a state agency, is not the Petitioner’s business associate and, therefore, her membership on the RIRRC Board does not constitute a conflict of interest relative to Mattress Recyclers’ requests for zoning relief from the City and the Waterfront Commission. For all of these reasons, 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 participating in the City’s and/or the Waterfront Commission’s review of Mattress Recyclers’ request for zoning relief, notwithstanding that she is a member of the RIRRC. 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(8) § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) Related Advisory Opinions: A.O. 2011-29 A.O. 2007-14 Keywords: Dual Public Roles [1] The Waterfront Commission was created by the Rhode Island General Assembly in 2003, and it operates independently of the City. 2003 R.I. Pub. Laws, ch. 345. The Waterfront Commission also has the powers of a Special Development District (R.I. Gen. Laws Chapter 45-24.4); a Redevelopment Agency (R.I. Gen. Laws Chapters 45-31, 45-31.1, 45-32 and 45-33); a Municipal Public Buildings Authority (R.I. Gen. Laws Chapter 45-50); as well as other powers set forth in 2003 R.I. Pub. Laws, ch. 345 § 7. [2] However, the Petitioner represents that, as Executive Director, she is a voting member of the Waterfront Commission’s Design Review Subcommittee, which reviews applications and provides advisory recommendations to the full Waterfront Commission for approval. [3] See R. I. Gen. Laws §§ 23-19-1 to -41. [4] East Providence Code of Ordinances § 19-96, entitled “Prohibited Uses,” provides in relevant part: “The following are prohibited uses and activities, whether principal or accessory uses, in all zoning districts: the disposal, processing or recycling of solid waste in any manner within the city . . . .” [5] The Petitioner states that, at this time, it is uncertain how Mattress Recyclers’ request for zoning relief will proceed given the concurrent jurisdiction of both the Waterfront Commission and the Zoning Board. Presently, she informs that the Waterfront Commission has asked Ms. Groch to advise the Waterfront Commission if mattress recycling qualifies as a conditional use. However, she represents that, if the Waterfront Commission determines that mattress recycling does not qualify for conditional use status, Mattress Recyclers could then proceed with its use variance application. She explains that it is unclear whether the use variance would be considered by the Waterfront Commission or the Zoning Board. She further states that, if Mattress Recyclers proceeds before the Zoning Board for a use variance, she would likely be consulted by the Zoning Officer and would participate as Planning Director in the Planning Board’s advisory recommendation to the Zoning Board regarding any use variance application.