Advisory Opinion No. 2012-30 Advisory Opinion No. 2012-30 Re: Robert Carpenter QUESTION PRESENTED The Petitioner, the Superintendent of State Piers for the Rhode Island Department of Environmental Management, a state employee position, requests an advisory opinion regarding whether the Code of Ethics restricts his wife from entering into a lease with the Rhode Island Department of Environmental Management. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner’s wife is not prohibited by the Code of Ethics from entering into a lease with the Rhode Island Department of Environmental Management. The Petitioner is the Superintendent of State Piers for the Rhode Island Department of Environmental Management (“DEM”), Division of Coastal Resources. He informs that the state piers are located in the Ports of Galilee and Newport. He states that he is responsible for the day-to-day operations of all state piers, including work assignments, supervision of work crews, dock maintenance and repair, and the assignment of dock spaces to commercial fishing vessels. He represents that the state piers are only utilized by commercial vessels, which are assigned dock spaces as they become available. The Petitioner informs that Galilee Grocery, a takeout deli and grocery store located at 2 State Street in the Galilee section of Narragansett, recently closed and posted a “gone out of business” sign on the property. He states that his wife contacted the owner directly and inquired about purchasing the business. He represents that his wife was informed that Galilee Grocery is situated on land owned by the state and, therefore, the purchase of Galilee Grocery is contingent on the buyer entering into a lease for the underlying land with DEM, which manages all Port of Galilee state owned land. He informs that his wife wants to buy Galilee Grocery and operate a similar takeout deli and grocery store. He states that he will not have any involvement in the day-to-day operations of this business and that he will not be a party to the lease with DEM. The Petitioner informs that his wife was referred to DEM’s Department of Planning and Development regarding entering into a lease for the Galilee Grocery property. The Petitioner states that after discussions with DEM legal counsel he was advised to seek an advisory opinion, given that he is a DEM employee and that he works in the Port of Galilee. The Petitioner informs that Galilee Grocery is across the street from part of the state pier. Although the land is owned by the state and is located close to the Galilee state pier, the Petitioner represents that he has no involvement, oversight or authority over the management of DEM land leases in the Port of Galilee. He states that his direct supervisor, Port Manager Daniel Costa, is the local DEM contact in Galilee for leases, communicating with tenants in arrears and scheduling meetings of the Galilee Lease Advisory Committee. The Petitioner represents that he has no involvement in Galilee leases. Additionally, he informs that his wife, who will be operating the business, will be the direct contact for any questions or issues that may arise regarding this lease. The Petitioner referred Commission Staff to Terri Bisson, Programming Services Officer for DEM’s Department of Planning and Development, to obtain more information about this lease. Ms. Bisson informs that the state has owned almost all the land in the Port of Galilee since the 1940’s, when it was condemned by the state for commercial fishing port purposes. She states that the land is managed by DEM, which currently oversees thirty-five (35) leases in the Port of Galilee. She represents that all DEM leases are subject to review and approval by the State Properties Committee.[1] She informs that the State Properties Committee requires DEM to re-appraise the state owned land in the Port of Galilee every three (3) years. She states that the property is categorized into zones and each zone is assigned a standardized price per square foot, from which DEM does not have discretion to deviate. She represents that rent is payable quarterly and the lessee is required to maintain property insurance. She informs that the Petitioner’s wife will be subject to the same standardized lease terms as any other potential lessee and that she will receive no special treatment because her husband is a DEM employee. If the Petitioner receives a favorable advisory opinion, the purchase process will proceed as follows. First, Mr. Costa will schedule a meeting of the Galilee Lease Advisory Committee (“GLAC”), which is a joint state and town committee, at the Narragansett Town Hall. The purpose of the GLAC meeting is to provide a public forum to the residents of Narragansett where they can be informed and have an opportunity to be heard regarding new leases in Galilee. GLAC will review the Petitioner’s wife’s request to purchase Galilee Grocery, receive public comment and then provide a recommendation to the Director of DEM. If the Director of DEM approves, the Petitioner’s wife will be permitted to enter into a purchase and sales agreement with the private seller of Galilee Grocery, which will be contingent on entering into the land lease with DEM. Next, DEM will draft a new lease for the Galilee Grocery property. Finally, DEM will bring the lease before a public meeting of the State Properties Committee, where the details of the lease will be fully disclosed. If the State Properties Committee approves the lease, the Petitioner’s wife will be permitted to close on the sale of the business. Given the above representations, the Petitioner seeks advice as to whether his wife may enter into a lease with DEM. Under the Code of Ethics, the Petitioner may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties and employment in the public interest. R.I. Gen. Laws § 36-14-5(a). The Petitioner will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. 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, for himself or his family or business associates, other than that provided by law. Section 36-14-5(d). Additionally, section 5(e) of the Code of Ethics provides that the Petitioner may not represent himself or any other person, or act as an expert witness, before any state or municipal agency of which he is a member or by which he is employed. Section 36-14-5(e)(1), (2) and (3). This prohibition continues for a period of one year after the Petitioner has officially severed his position with the agency. Section 36-14-5(e)(4). Finally, the Petitioner may not enter into a contract with a state or municipal agency unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. Section 36-14-5(h). In the present matter, there is nothing to indicate that the Code of Ethics will be implicated if the Petitioner’s wife enters into a lease with DEM as part of a private sale to purchase Galilee Grocery. Here, the Petitioner represents that his work is limited to the maintenance and supervision of the state piers and its use by commercial vessels. He states that he has no involvement, oversight or authority over the management of DEM land leases in the Port of Galilee. He further represents that he will have no involvement in the day-to-day operations of Galilee Grocery, which will be managed and operated by his wife. According to the above representations, the Petitioner will not appear before DEM or represent himself or his wife before DEM. Additionally, the facts surrounding the Petitioner’s wife’s plan to purchase Galilee Grocery and the terms of her lease with DEM will be disclosed and discussed at two separate public meetings, by means of an open and public process. Contra A.O. 99-8 (opining that a Narragansett Town Council member could not serve as a member of the Galilee Lease Committee, given that he and his wife had financial interests in two (2) restaurants in the Port of Galilee and leasing decisions regarding businesses that would locate in the Port of Galilee would necessarily affect existing businesses in Galilee). For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner’s wife is not prohibited by the Code of Ethics from entering into a lease with DEM. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-5(e) § 36-14-5(h) § 36-14-7(a) Related Advisory Opinions: A.O. 99-8 Keywords: Property Interest [1] The State Properties Committee is not part of DEM. It was established “to act in cooperation with the departments, boards, bureaus, commissions, and agencies of the state for the purpose of acquiring, administering, and disposing of interests in land and other real property for the improvement of the administration of the state government, the advancement of commerce, and the protection and improvement of the health, welfare, and safety of the inhabitants of this state.” R.I. Gen. Laws § 37-6-1.