Advisory Opinion No. 2011-29

Re: Kathleen Wilson

QUESTION PRESENTED

The Petitioner, a member of the Portsmouth Planning Board, a municipal appointed position, who is also a civil engineer for the Rhode Island Department of Transportation, a state employee position, requests an advisory opinion regarding whether she may participate in and vote on a development proposal pending before the Planning Board, given that in her capacity as a Department of Transportation civil engineer she has been reviewing the same property to ensure that the state’s property interests are protected.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Portsmouth Planning Board, a municipal appointed position, who is also a civil engineer for the Rhode Island Department of Transportation, a state employee position, may participate in and vote on a development proposal pending before the Planning Board, notwithstanding that in her capacity as a Department of Transportation civil engineer she has been reviewing the same property to ensure that the state’s property interests are protected.

The Petitioner has worked as a civil engineer for the Rhode Island Department of Transportation (“DOT”) since 1993. She informs that her duties at the DOT include reviewing residential and business development plans that may impact state properties. She advises that when a developer submits plans to the DOT for a physical alteration permit, she reviews the plans, following specific regulations and protocols, to ensure that there are no direct drainage connections onto state property, that all railroad crossings are to the latest standards, and that driveway openings are safe.

The Petitioner is also a member of the Portsmouth Planning Board (“Planning Board”), appointed in October of 2010. She states that the Carnegie Beach Club (“Carnegie”) has a development plan pending before the Planning Board, for which two of the seven Planning Board members have already recused, one as an abutter and the other as a business associate of Carnegie. The Petitioner informs that she has worked, on behalf of the DOT in her capacity as a state employee, on Carnegie’s application for a physical alteration permit. Mindful of the conflict of interest provisions the Petitioner seeks guidance from the Ethics Commission. To assist the Commission’s analysis, the Petitioner makes the following representations.

With respect to her DOT work on Carnegie’s physical alteration permit, she represents that her responsibilities as a DOT engineer are focused on protecting the state’s land from damage caused by drainage from newly developed private land. For example, she reviewed Carnegie’s plans for installing a culvert and drainage pipes through the state’s railroad right-of-way, ensuring that the pipes were concrete and suitable for railroad construction. She advises that as part of this review, she and other DOT engineers had discussions with the owner of Carnegie and his engineer regarding the state’s interest in drainage runoff from Carnegie’s property onto state land and the state’s railroad right-of-way.

In contrast, she represents that Carnegie’s issues before the Planning Board are unrelated to the drainage issues and state property that were her concern as a DOT engineer. For example, she states that the Planning Board may consider applications to change some houses to bungalows, approve street lighting plans, and discuss Town requirements for roadway width. Thus, while her DOT position requires her to enforce state laws to protect state property, her role on the Planning Board looks at separate issues, which are normally regulated by the Town.

Additionally, the Petitioner represents that neither she nor anyone in her family is associated with Carnegie’s development application, nor is a member of the club. She further informs that she is not an abutter to the project and that her personal property will not be impacted by this development. Given the above representations, the Petitioner seeks guidance as to whether she can participate in the Planning Board’s review of the Carnegie Beach Club’s development plan.

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. R.I. Gen. Laws § 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). A public official or employee is also prohibited from accepting other employment that will either impair her independence of judgment as to her official duties or employment, or require her to disclose confidential information acquired by her in the course of her official duties. Section 36-14-5(b). Finally, a public official may not use her office for pecuniary gain, other than as provided by law, for herself, a family member, employer, business associate, or a business that she represents. Section 36-14-5(d).

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). 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).

The Commission has considered similar fact patterns before in cases where a public official holds dual public roles. For example, in Advisory Opinion 2007-14, focusing on the fact that public entities are not business associates, the Commission opined that a member of the North Kingstown Town Council, who was also a member of a Quonset Development Corporation (“QDC”), could participate in and vote on a development proposal pending before the QDC even though he previously considered and voted on the matter before the Town Council, because the Town was not considered a “business” or “business associate” under the Code of Ethics. See also A.O. 2010-57 (opining that the Coventry Town Council and Coventry Fire District are not considered “businesses” under the Code of Ethics); A.O. 2002-55 (opining that the term “business” as used in the Code does not include public entities such as the Town of Richmond). Similarly, but focusing on the absence of a financial benefit, the Commission opined that a member of the Coastal Resources Management Council (“CRMC”), who was also a member of the Newport Waterfront Commission (“NWC”), could participate in the CRMC’s review of matters previously reviewed by the NWC, given that he would not receive any personal benefit, financial or otherwise, by or because of any official activity he may take as a CRMC member. A.O. 2002-1.

In the present matter, neither the DOT nor the Planning Board are considered businesses according to the definitions in the Code, therefore, the “business associates” prohibitions that would otherwise constrain the Petitioner while carrying out her public duties do not apply. Based on the Petitioner’s representations that neither she nor anyone in her family is associated with Carnegie, and the fact that she is not an abutter to the property in question, there is no presumption of financial benefit or detriment to her by or because of any official activity she may take as a Planning Board member. As such, it is the opinion of the Rhode Island Ethics Commission that the Petitioner may participate in and vote on Carnegie’s development plan pending before the Planning Board, notwithstanding her work for the DOT relating to the protection of the state’s property interests.

Code Citations:

§ 36-14-2(2)

§ 36-14-2(3)

§ 36-14-2(7)

§ 36-14-5(a)

§ 36-14-5(b)

§ 36-14-5(d)

§ 36-14-7(a)

Related Advisory Opinions:

A.O. 2010-57

A.O. 2010-48

A.O. 2007-14

A.O. 2002-55

A.O. 2002-1

A.O. 99-103

Keywords:

Dual Public Roles