Advisory Opinion No. 2018-51 Rhode Island Ethics Commission Advisory Opinion No. 2018-51 Approved: October 16, 2018 Re: Thomas Kane QUESTION PRESENTED: The Petitioner, a member of the Cumberland Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Town Council’s discussion and/or decision-making regarding a proposed ordinance relating to the use of tow service companies by the Cumberland Police Department, given that the Petitioner is also employed by the Town of North Providence and the son of the Mayor of North Providence operates a tow service company in the Town of Cumberland. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Cumberland Town Council, a municipal elected position, is not prohibited by the Code of Ethics from participating in the Town Council’s discussion and/or decision-making regarding a proposed ordinance relating to the use of tow service companies by the Cumberland Police Department, notwithstanding that the Petitioner is also employed by the Town of North Providence and the son of the Mayor of North Providence operates a tow service company in Cumberland. The Petitioner is a member of the Cumberland Town Council (“Town Council”). In addition to his Cumberland Town Council position, the Petitioner is also the current Tax Assessor/Tax Collector for the Town of North Providence, a full-time position that was appointed by the Mayor and confirmed by the Town Council. The Petitioner states that, on October 17, 2018, the Town Council will vote on Ordinance #18-18 (“ordinance”) relating to the use of tow service companies by the Cumberland Police Department (“Police Department”). The Petitioner explains that the ordinance requires, among other things, that tow service companies dispatched by the Police Department be certified to operate by the Rhode Island Public Utilities Commission; store vehicles in the Town of Cumberland on secured premises consisting of no less than 10,000 square feet; submit to bi-annual inspections by the Chief of Police of the premises and tow service vehicles; and be called upon for their services by the Police Department on a rotating basis.[1] The Petitioner represents that the Police Department currently maintains a list of the names of four tow service companies that are dispatched on a rotating basis with no other standards or regulations in place. The Petitioner further represents that the Chief of Police selects which tow service companies get put on the list, and that one of the tow service companies presently on the list is owned by the son of the Mayor of the Town of North Providence (“Mayor”). The Petitioner states that only one of the four tow service companies on the list presently meets all of the criteria outlined in the ordinance, and that the Mayor’s son gave testimony during a sub-committee hearing that he will be in compliance with the ordinance by October 14, 2018.[2] The Petitioner states that he has no current or anticipated future business relationship with the Mayor’s son and that the Mayor is not involved in his son’s tow service company. The Petitioner further states that his continued employment as Tax Assessor/Tax Collector for the Town of North Providence is in no way dependent upon his participation in the discussion and/or decision-making relative to the ordinance, nor has the Petitioner solicited or accepted any reward or promise of future employment as Tax Assessor/Tax Collector for the Town of North Providence based upon his participation in the discussion and/or decision-making as to the ordinance. 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. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). 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). 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). Here, although the Petitioner is employed by the Town of North Providence, the Town of North Providence is not a “business” as that term is used in the Code of Ethics. See A.O. 2018-3 (the Town of Johnston is not a “business” as that term is used in the Code of Ethics); A.O. 2002-55 (the Town of Richmond is not a business as that term is used in the Code of Ethics). Because the Town of North Providence is not a business, the Petitioner and the Mayor are not business associates and therefore the above prohibitions of the Code of Ethics are not triggered. Furthermore, the Petitioner represents that he has no current or anticipated future business relationship with the Mayor’s son. Accordingly, the above prohibitions of the Code of Ethics are likewise not triggered. See A.O. 2001-24 (concluding that a Town Councilor employed by the Secretary of State’s Office may participate in Council matters involving property owned by the Secretary of State’s Deputy Chief of Staff, given that they do not have a familial relationship and no business association exists between the parties). Finally, a public official may not accept any reward or promise of future employment in return for or based on any understanding or expectation that his vote, official action or judgment would be influenced thereby. Section 36-14-5(g). The Petitioner states that his continued employment as Tax Assessor/Tax Collector for the Town of North Providence is in no way dependent upon his participation in the discussion and/or decision-making relative to the ordinance, nor has the Petitioner solicited or accepted any reward or promise of future employment as Tax Assessor/Tax Collector for the Town of North Providence based upon his participation in the discussion and/or decision-making as to the ordinance. For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from participating in the Town Council’s discussion and/or decision-making regarding a proposed ordinance relating to the use of tow service companies by the Cumberland Police Department, notwithstanding that the Petitioner is also employed by the Town of North Providence and the son of the Mayor of North Providence operates a towing company in Cumberland. 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) § 36-14-5(a) § 36-14-5(g) § 36-14-7(a) Related Advisory Opinions: A.O. 2018-3 A.O. 2002-55 A.O. 2001-24 Keywords: Business Business Associate Conflict: Discharge of Duties [1] The Petitioner provided a copy of the ordinance as part of his request for an advisory opinion. [2] The Petitioner was not a member of the sub-committee.