Advisory Opinion No. 2016-43 Rhode Island Ethics Commission Advisory Opinion No. 2016-43 Approved: December 6, 2016 Re: Dean Naylor QUESTION PRESENTED: The Petitioner, a member of the North Smithfield Planning Board, a municipal appointed position, requests an advisory opinion regarding whether he may accept, if offered, the position of Town Planner. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the North Smithfield Planning Board, a municipal appointed position, is prohibited from accepting, if offered, employment as the Town Planner while he sits on the North Smithfield Planning Board, and for one year thereafter. The Petitioner informs that he is a member of the North Smithfield Planning Board (“Board” or “Planning Board”), having been appointed thereto by the North Smithfield Town Council on August 18, 2008, and reappointed on December 5, 2011 and again on December 2, 2013. The Petitioner represents that the current Town Planner is retiring effective December 1, 2016, thereby creating a vacancy in that position. The Petitioner informs that he submitted an application for said position prior to seeking the instant advisory opinion as the closing date for submitting an application is December 2, 2016. The Petitioner states that the screening and selection process for the Town Planner is governed by section 2-97 of the North Smithfield Town Ordinance which provides, in relevant part: (a) Effective January 1, 1986, there is hereby created in the department of administration, the position of town planner who shall be qualified by virtue of education and experience as a community planner and who shall be appointed by the town administrator. Such office shall be co-terminus with the town administrator or until such time as a successor is appointed and shall receive such compensation as may be determined by the town council. The planning board shall make three recommendations to the town administrator during the selection process. The final appointee shall have the recommendation of the planning board. (Emphasis added). As part of the hiring procedure for the position of Town Planner, the Director of Human Resources receives and processes all employment applications. Interviews for the position of Town Planner are conducted by the Director of Human Resources, a member of the Planning Board, and a member of the Personnel Board. The Planning Board as a whole then reviews and discusses the qualifications of those candidates who have been interviewed and makes its recommendations to the Town Administrator. The Petitioner represents that he intends to recuse from participating in the interviews for Town Planner applicants and voting on the selection of a particular applicant, including himself. The Petitioner further represents that if he is selected for the position of Town Planner, it is his intent to resign from his position as a member of the Board. Given all of the above representations, the Petitioner asks whether, if offered the position of Town Planner, the Code of Ethics would permit him to accept said employment. Under the Code of Ethics, a public official shall not have an interest, or engage in any business, employment, transaction or professional activity, which is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). An official will have an interest in substantial conflict with his official duties if it is likely that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his official activity, to the official, a family member, a business associate, or any business by which the official is employed or which the official represents. Section 36-14-7(a). Section 5(b) of the Code prohibits a public official from accepting other employment that will either impair his independence of judgment as to his official duties or employment or require him to disclose confidential information acquired by him in the course of his official duties. A public official may not use his public position to obtain financial gain, other than that provided by law, for himself, his family, a business associate, or any business by which the official is employed or which the official represents. Section 36-14-5(d). These Code provisions act to prohibit the Petitioner from taking official action to promote his own selection for the position of Town Planner. This includes participating in the interviews and selection of other candidates who are competing against the Petitioner on the basis that a decision to reject another candidate would potentially narrow the choices of candidates, thereby making the Petitioner’s selection more likely. However, even if the Petitioner were to recuse from the Board’s consideration of all candidates, he would still be prohibited from accepting the position pursuant to Commission Regulation 36-14-5006 (“Regulation 5006”), one of the “Revolving Door” provisions of the Code of Ethics. That Regulation states: No elected or appointed official may accept any appointment or election that requires approval by the body of which he or she is or was a member, to any position which carries with it any financial benefit or remuneration, until the expiration of one (1) year after termination of his or her membership in or on such body, unless the Ethics Commission shall give its approval for such appointment or election, and, further provided, that such approval shall not be granted unless the Ethics Commission is satisfied that denial of such employment or position would create a substantial hardship for the body, board, or municipality. The Commission has frequently considered and applied Regulation 5006 in past advisory opinions. In Advisory Opinion 2010-24, the Commission opined that a member of the Coventry Housing Authority Board of Commissioners was prohibited by Regulation 5006 from accepting employment from the Housing Authority as its Maintenance Director, given that the board was responsible for hiring the Executive Director who was then responsible for hiring the other employees, including the maintenance director. See also A.O. 2010-26 (opining that a member of the City of East Providence Canvassing Authority may not be hired by the Authority as the Canvassing Authority Administrator); A.O. 2004-36 (opining that a state employee sitting on the Rhode Island Water Resources Board as the designee of the Director of Administration could not become employed by the Board as its General Manager while serving and for one year thereafter); and A.O. 2001-53 (former Tiverton Town Councilor may not accept appointment as the Tiverton Fire Chief prior to the expiration of one year from the date of leaving position on the Council, given that appointment requires the Council’s advice and consent). Contra A.O. 2012-19 (a member of the Rhode Island Contractors’ Registration and Licensing Board (“Board”) may accept employment with the Board as a Senior State Building Code Official, a position governed by the Department of Administration, given that the Board has no hiring, supervisory, policy or fiscal authority over the position and also provided that he resigns as a member of the Board). In the instant case, the Petitioner is a current member of the North Smithfield Planning Board. Even if he were to resign his seat if offered the position of Town Planner, such employment within one year of his service on the Board would violate Regulation 5006. Based on the language of the relevant section of the North Smithfield Town Ordinance quoted supra, although the Town Administrator ultimately appoints the Town Planner, the selection process and final decision require approval of the Planning Board, of which the Petitioner is a member. This is not a situation in which the board of which the petitioner is a member has no hiring authority over the position in question. See A.O. 2012-19. Furthermore, the Petitioner represents that he has no evidence that the Town of North Smithfield or the Board would suffer a substantial hardship if unable to hire the Petitioner for the position of Town Planner. Accordingly, the Petitioner must wait one year from his resignation of service on the Board before accepting employment as the Town Planner. For all of these stated reasons, it is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the North Smithfield Planning Board, a municipal appointed position, is prohibited from accepting, if offered, employment as the Town Planner while he sits on the North Smithfield Planning Board, and for one year thereafter. 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: § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-7(a) Commission Regulation 36-14-5006 Related Advisory Opinions: A.O. 2012-19 A.O. 2010-26 A.O. 2010-24 A.O. 2004-36 A.O. 2001-53 Keywords: Revolving door Private employment