Advisory Opinion No. 2013-27 Re: Sean J. McGarry QUESTION PRESENTED The Petitioner, a member of the Town of New Shoreham Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits his participation in the discussion and vote relative to the Town Manager’s employment contract, given that the Town Manager oversees the performance of contracts between the Town and the Petitioner in his private capacity. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a member of the Town of New Shoreham Town Council, a municipal elected position, from participation in the discussion and vote relative to the Town Manager’s employment contract, notwithstanding that the Town Manager oversees the performance of contracts between the Town and the Petitioner in his private capacity. The Petitioner is a member of the Town of New Shoreham Town Council (“Town Council”), having been elected in November 2012. In his private capacity, the Petitioner is a fifty (50%) percent owner of Block Island Recycling Management (“BIRM”), a waste collection and hauling company with a principal place of business on Block Island. The Petitioner represents that BIRM currently holds three (3) contracts with the Town of New Shoreham (“Town”): the collection of trash, the supplying of road materials, and the operation and maintenance of the transfer station. The Petitioner informs that BIRM was initially awarded these contracts in 1998 through an open and public bidding process prior to his election to the Town Council. The Petitioner further informs that the most recent renewal of the contracts was in 2011 and the contracts were again awarded to BIRM through an open and public bidding process prior to his election to the Town Council.[1] The Petitioner states that the Town Manager, in her capacity as Public Works Director, oversees the performance of BIRM’s contracts. The Petitioner states that he has and will continue to recuse from all Town Council matters concerning BIRM’s contracts with the Town and any other matters relating to the services that BIRM provides to the Town. The Petitioner represents that presently before the Town Council is a motion for the Town to renew its contract with Nancy Dodge, who currently serves as the Town Manager. He also represents that this vote was tabled in order for the Petitioner to seek guidance from the Ethics Commission relative to his ability to participate in the matter. Under the Code of Ethics, a public official may not have any interest, financial or otherwise, direct or indirect, which is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if he has reason to believe or expect that he or any family member, or business associate, or any business by which he is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). He is also prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents. Section 36-14-5(d). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). Additionally, a public official shall not offer or accept a promise of future employment based on any understanding or expectation that his or another person’s vote, official action, or judgment would be influenced. Sections 36-14-5(g) and 36-14-5(i). Based on the above provisions of the Code of Ethics, the Petitioner must continue to recuse from participation in any Town Council discussion and voting relative to BIRM’s contracts with the Town and any other matters relating to the services that BIRM provides to the Town. However, the Petitioner is not required to recuse from Town Council matters that impact the Town Manager because neither the Town Manager nor the Town itself are “business associates” of the Petitioner, as that term is defined in the Code of Ethics. See A.O. 2008-40 (opining that the Town of Warren and the Warren Town Council are not considered to be “businesses” or “business associates” under the Code of Ethics); A.O. 2005-31 (Town of Portsmouth is not a “business,” nor is it a “business associate” of the Town’s Director of Business Development); A.O. 2002-55 (term “business” as used in the Code of Ethics does not include municipal corporations such as the Town of Richmond); A.O. 97-17 (finding, inter alia, that the definition of “business” does not extend to public entities such as the Warren Town Council). In particular, the Town Manager is not a business associate of the Petitioner merely as a result of her public duty relative to the Town’s oversight of BIRM’s contracts. Therefore, assuming that there is no understanding or expectation that the Petitioner’s participation in the discussion and vote relative to the Town Manager’s contract is related or in any way tied to the oversight of BIRM’s services to the Town, the Petitioner’s participation in the discussion and vote relative to the Town Manager’s contract would not result in any financial impact to him, his business associate or any business by which he is employed. Accordingly, it is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a member of the Town of New Shoreham Town Council, a municipal elected position, from participation in the discussion and vote relative to the Town Manager’s employment contract, notwithstanding that the Town Manager oversees the performance of contracts between the Town and the Petitioner in his private capacity. This advisory opinion only considers the application of the Code of Ethics and does not address the application of any municipal charter or ordinance, or any other policy, statute, rule or regulation Code Citations: 36-14-5(a) 36-14-5(d) 36-14-5(g) 36-14-5(h) 36-14-5(i) 36-14-7(a) Commission Regulation 36-14-5014 Related Advisory Opinions: 2008-40 2005-31 2002-55 97-17 Keywords: Business Associate [1] R.I. Gen. Laws § 36-14-5(h) provides that public officials, as well as their relatives and business associates, may not enter into contracts with any state or municipal agency unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure or all proposals considered and contracts awarded. Commission Regulation 36-14-5014 states that no municipal elected official, while holding office and for a period of one (1) year after leaving municipal office, shall seek or accept employment with any municipal agency in the municipality in which the official serves, other than employment which was held at the time of the official’s election.