Advisory Opinion No. 2012-14

Re: Brian Andrade

QUESTION PRESENTED:

The Petitioner, a prospective Commissioner for the Johnston Housing Authority, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from serving as a Commissioner while he is also a Section 8 landlord in Johnston.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a prospective Commissioner for the Johnston Housing Authority, a municipal appointed position, is not prohibited by the Code of Ethics from serving as a Commissioner while he is also a Section 8 landlord in Johnston, given that his tenant’s Section 8 housing choice voucher was transferred from the Johnston Housing Authority to Rhode Island Housing.

On September 12, 2011, the Johnston Town Council appointed the Petitioner to serve a five (5) year term as a Johnston Housing Authority (“JHA”) Commissioner. He informs that the JHA is a municipal agency that provides subsidized housing to low and moderate income individuals and families. He states that, among its powers enumerated in R.I. Gen. Laws § 42-25-15, the JHA primarily operates public housing developments and administers the Section 8 housing choice voucher program within the Town of Johnston (“Town”). He represents that the JHA receives state and federal funding and is governed by U.S. Department of Housing and Urban Development (“HUD”) housing regulations.

The Petitioner represents that he has owned a single family home in the Town for about two (2) years. He states that this property has been rented out to a Section 8 tenant for as long as he has owned it. He informs that prior to his appointment, his tenant’s Section 8 housing choice voucher was administered by the JHA. Cognizant of a potential conflict of interest, the Petitioner represents that his swearing in as a Commissioner has been delayed until he receives opinions from the local HUD office and the Ethics Commission. The Petitioner states that the local HUD office advised the JHA to transfer the administration of his tenant’s Section 8 housing choice voucher to a different administering agency. Therefore, he represents that he and the JHA began the process of transferring his tenant’s Section 8 housing choice voucher to Rhode Island Housing, which was accomplished effective May 1, 2012. He informs that his tenant’s voucher is now exclusively administered by Rhode Island Housing. He represents that he will no longer receive any JHA administered monies. He further informs that the JHA no longer has jurisdiction over the Section 8 tenant at his property.

Given the above representations, the Petitioner seeks advice as to whether he can serve as a JHA Commissioner while he is also a Section 8 landlord of property located in the Town, receiving housing assistance payment monies from Rhode Island Housing.

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). Additionally, the Code prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any person by which he is employed or whom he represents. Section 36-14-5(d).

In Advisory Opinion 2002-42, the Commission permitted a housing authority employee to participate in his agency’s Section 8 housing program as a landlord, based upon his representation that he had no discretionary authority over who participated in the program and provided that he recused from participating in any housing authority matters involving his property. See also A.O. 2000-28 (opining that a member of the West Warwick Town Council, who was also a business owner in that municipality, could participate in a Community Development Block Grant (CDBG) Business Assistance Loan program administered by the Town, provided that he did not receive a loan allocated from the Town’s 1999 grant funds upon which he voted and, in the event that he received a loan under the program, he could not participate and/or vote on salaries and/or personnel matters involving the members of the Town’s administration that processed and approved the individual loan applications).

The present matter is distinguishable from the conflicts presented in Advisory Opinions 2002-42 and 2000-28 because the Petitioner has taken affirmative steps to remove potential financial conflicts by transferring the administration of his tenant’s Section 8 housing choice voucher to Rhode Island Housing, a state agency with a separate jurisdiction from the JHA. Therefore, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from serving as a JHA Commissioner, given that his tenant’s Section 8 housing choice voucher has been transferred from the Johnston Housing Authority to Rhode Island Housing.

In his request letter the Petitioner also asked whether, as a Commissioner of the JHA, he can participate in JHA matters affecting other Section 8 landlords or tenants. The facts as represented are insufficient to allow the Commission to determine, at this time, whether a financial nexus exists between the Petitioner and other Section 8 landlords or tenants working with the JHA’s Section 8 program. However, as to Section 8 landlord and tenant issues, or any other issues that come before the JHA, the Petitioner is advised the he is required to recuse from participating if he has reason to believe that he, a member of his family, his employer or his business associate will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Notice of recusal must be filed in accordance with § 36-14-6.

Code Citations:

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-6

§ 36-14-7(a)

Related Advisory Opinions:

A.O. 2002-42

A.O. 2001-48

A.O. 2000-28

Keywords:

Financial Interest

Property Interest