Advisory Opinion No. 2013-32 Re: Kimberlie J. Rayner-Russell QUESTION PRESENTED The Petitioner, a member of the Westerly Harbor Management Commission, a municipal appointed position, requests an advisory opinion regarding whether any conflicts of interest arise under the Code of Ethics by reason of her part-time private employment with the Watch Hill Conservancy. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from serving on the Westerly Harbor Management Commission, notwithstanding her part-time private employment with the Watch Hill Conservancy, but her ability to participate in particular items that may impact the Watch Hill Conservancy require a matter by matter analysis. The Petitioner states that she has been a member of the Westerly Harbor Management Commission (“Harbor Commission”) since January 2008. The Harbor Commission was established by the Westerly Town Council in June 2003 to prepare a Harbor Management Plan (“HMP”) and a harbor ordinance in accordance with the Rhode Island Coastal Resources Management Council’s (“CRMC”) guidelines. She states that the HMP is intended to be a coastal water extension of the Town’s Comprehensive Plan, incorporating the following elements required by the CRMC: Public Access; Water Quality; Mooring Management; and Storm Preparedness. The Petitioner informs that the Harbor Commission is in the process of finalizing the Town’s HMP with input from the CRMC. She states that a final draft will be submitted to the Town Council, which will hold public meetings and potentially suggest revisions. She represents that, thereafter, the HMP must again be approved by the CRMC one last time before it and the harbor ordinance can be implemented. She informs that the Harbor Commission’s jurisdiction is limited to the Harbor District waters up to the mean high tide line and the preservation of public access to the shoreline. In her private capacity, the Petitioner represents that she has thirty (30) years of experience working in the marine industry. She informs that she has been working as a part-time administrator at the Watch Hill Conservancy (“Conservancy”), a private, not-for-profit land trust located in the Town of Westerly (“Town”), since May 28, 2013. She states that the Conservancy’s mission is to protect and preserve Watch Hill’s natural resources and to promote the preservation of its historic architecture.[1] She represents that the Conservancy owns ten (10) properties, all of which are vacant, undeveloped and unbuildable land. She states that three (3) of the Conservancy’s properties are located in the Napatree Point Conservation Area, which is both a wildlife refuge and a public recreation area.[2] She states that the Conservancy jointly manages the Napatree Point Conservation Area along with the Watch Hill Fire District, the U.S. Fish and Wildlife Service, the CRMC, and the Rhode Island Department of Environmental Management. The Petitioner states that it is common for a representative of the Conservancy to attend Harbor Commission meetings and to participate during periods of public comment. She represents that most of the matters upon which the Conservancy comments are matters of general public interest, such as the proposed HMP and harbor ordinance. She states that the implementation of the HMP and the harbor ordinance will have no financial impact upon the Conservancy. The Petitioner represents that as an employee of the Conservancy her duties are limited to administrative tasks and she does not have any authority or responsibilities relative to policy decisions, which are made by the Conservancy’s Board of Directors. She states that her employment at the Conservancy does not require her to appear before the Harbor Commission. She further represents that her employment at the Conservancy does not prevent her from performing her official duties as a member of the Harbor Commission in a fair and objective manner. Based upon the above representations, the Petitioner seeks advice as to whether the Code of Ethics prohibits her continued service on the Harbor Commission. If she can continue to serve, she seeks guidance as to the limitations that the Code of Ethics places upon her official duties as a member of the Harbor Commission. The Code of Ethics prohibits a public official from accepting any other employment which will either impair her independence of judgment as to her official duties or induce her to disclose confidential information acquired by her in the course of and by reason of her official duties. Section 36-14-5(b). The Code of Ethics prohibits a public official from using her public office or confidential information received through her public office to obtain financial gain for herself, her family member, her business associate, or employer. Section 36-14-5(d). Additionally, a public official may not participate in any matter in which she has an interest, financial or otherwise, that 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). The above provisions of the Code of Ethics do not preclude the Petitioner’s continued service on the Harbor Commission while she is simultaneously working for the Conservancy. This is based upon her representations that she can objectively perform her official duties on the Harbor Commission, that her employment does not require her to appear before her own board, and that the Conservancy is not financially impacted by the HMP. However, in the course of her service on the Harbor Commission, the Code of Ethics requires the Petitioner to recuse herself from participation when her employer has a financial interest in a matter pending before the Harbor Commission, or when a representative of her employer appears or presents evidence or arguments before the Harbor Commission as a party or participant in a pending matter. Commission Regulation 36-14-5002 (“Regulation 5002”); R.I. Gen. Laws § 36-14-5(f). Notably, there is an exception to this recusal requirement which provides that recusal is not required when the Petitioner’s employer appears before the Harbor Commission during a period when public comment is allowed, to offer comment on a matter of general public interest, provided that all other members of the public have an equal opportunity to comment, and further provided that the . . . employer . . . is not otherwise a party or participant, and has no personal financial interest, in the matter under discussion. Regulation 5002(b)(2). This exception is similar to the public forum exception set forth in Commission Regulation 36-14-7003. It focuses on unique situations, not otherwise contemplated by Regulation 5002(a), where a public official’s employer appears before the public official’s board on a matter in which it has no financial interest and is not a party or participant. Given that representatives of the Conservancy attend Harbor Commission meetings and provide public comment, there may be occasions where Regulation 5002 requires the Petitioner to recuse, which must be determined on a case by case basis. Although the Commission cannot anticipate the nature of the Conservancy’s future hypothetical appearances before the Harbor Commission, it advises that the Petitioner would be required to recuse from any Harbor Commission matters in which the Conservancy is a party or participant, or in which the Conservancy has a financial interest. See A.O. 2007-57 (opining that a member of the Newport Waterfront Commission (“NWC”), who was also a self-employed marine businessman and the owner/operator of Newport Mooring Service LLC that owned 18 commercial moorings, was not prohibited from serving on the NWC and that his ability to participate in issues related to moorings required a matter by matter analysis). The Petitioner is encouraged to seek further advice from the Commission concerning her ability to participate in specific matters that may involve the Conservancy as they arise. In summary, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from serving on the Harbor Commission, notwithstanding her part-time private employment with the Conservancy, but her ability to participate in issues that may impact the Conservancy require a matter by matter analysis. Code Citations: § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-5(f) § 36-14-7(a) Commission Regulation 36-14-5002 Commission Regulation 36-14-7003 Related Advisory Opinions: A.O. 2007-57 Keywords: Private Employment [1] Watch Hill is a coastal village in the southwestern section of Westerly. [2] Napatree Point is a barrier beach that extends westward from Watch Hill Cove. It has been vacant and undeveloped since all of its structures were destroyed by the Hurricane of 1938.