Advisory Opinion No. 2011-18

Re: Douglas C. Jeffrey

QUESTION PRESENTED

The Petitioner, Chief of Staff for the Town of Johnston, a municipal appointed position, requests an advisory opinion as to whether the Code of Ethics prohibits him from continuing to serve as the Chairman of the Board of Commissioners for the Rhode Island Resource Recovery Corporation, a state appointed position.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Chief of Staff for the Town of Johnston, a municipal appointed position, is not prohibited by the Code of Ethics from continuing to serve as the Chairman of the Board of Commissioners for the Rhode Island Resource Recovery Corporation, a state appointed position.

The Petitioner informs that he was recently appointed as the Chief of Staff for the Town of Johnston (“Town”). He states that his Chief of Staff position is part-time and his responsibilities include overseeing personnel matters and supervising various Department Heads within the Town. He also informs that, unrelated to his work for the Town, he is the Chairman of the Board of Commissioners (“Board”) for the Rhode Island Resource Recovery Corporation (“RIRRC”). He advises that he receives no compensation for his service as Chairman of the Board, but he may be reimbursed for Board related expenses incurred in carrying out his duties. Additionally, the Petitioner represents that he is prepared to recuse himself from matters before either entity that involve the other entity of which he is a member in order to avoid the appearance of impropriety.

He advises that RIRRC is a quasi-public state agency, located in the Town, which manages the State’s recycling program and also owns and operates the Central Landfill and Materials Recycling Facility. He explains that the powers of RIRRC are vested in its Board. He further advises that the Board, either directly or through its committees, reviews and approves the strategic plan, annual operating plans, and budget; monitors the risk policies and procedures; oversees the accounting and financial reporting systems and processes; monitors organizational, structural, staffing, and control matters; oversees RIRRC’s reporting, disclosure, and communications to the State; and engages in other management related functions.

Relative to the above representations, the Petitioner seeks an advisory opinion to determine whether the Code of Ethics prohibits his simultaneous service as both Chief of Staff for the Town of Johnston and as Chairman of the RIRRC Board.

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 public official or employee is also prohibited 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. Section 36-14-5(b). Finally, a public official may not use his office for pecuniary gain, other than as provided by law, for himself, a family member, employer, business associate, or a business that he represents. Section 36-14-5(d).

In past advisory opinions, the Commission has opined that the Code of Ethics does not create an absolute bar against simultaneous service for two different governmental entities. Rather, the Commission has determined that a matter by matter evaluation and determination must be made as to whether substantial conflicts of interest exist, in either public role, with respect to the Petitioner carrying out his duties in the public interest. In particular, the Commission has considered whether a public official’s service on either entity would result in an impermissible financial impact and whether a public official’s independence of judgment would be impaired as to his public responsibilities. See e.g. A.O. 2005-45 (opining that a member and Chairman of the East Providence Planning Board, a municipal appointed position, may simultaneously serve as a member of the East Providence Waterfront Special Development District Commission, a state appointed position); A.O. 2005-3 (opining that a Commissioner of the Rhode Island Public Utilities Commission, a state appointed position, may simultaneously serve as a member of the East Greenwich Planning Board, a municipal appointed position). Cf. A.O. 2007-14 (opining that a member of the North Kingstown Town Council, who was also a Director of Quonset Development Corporation (“QDC”), may participate and vote on a development proposal pending before the QDC because the Town was not considered a “business” or “business associate” under the Code of Ethics).

Here, based on the Petitioner’s representations, there is no indication that his simultaneous service as Chief of Staff for the Town of Johnston and as Chairman of the RIRRC Board will violate the Code of Ethics. Absent some direct financial nexus between the Petitioner’s two public roles, no inherent conflict of interest would preclude his simultaneous service. The Petitioner is advised to seek further advice from the Commission or to recuse himself in accordance with § 36-14-6 if a particular matter pending before either entity triggers such provisions of the Code of Ethics.

The petitioner is also advised that this opinion solely addresses whether the Code of Ethics prohibits him from simultaneously holding these public positions. This opinion does not, and cannot, address whether any other statutes, charters, ordinances, rulings, regulations, or policies prohibit such simultaneous service.

Code Citations:

§ 36-14-5(a)

§ 36-14-5(b)

§ 36-14-5(d)

§ 36-14-6

§ 36-14-7(a)

Related Advisory Opinions:

A.O. 2010-57

A.O. 2008-64

A.O. 2007-14

A.O. 2005-45

A.O. 2005-3

Keywords:

Dual Public Roles

Issued March 8, 2011