Advisory Opinion No. 2013-11 Advisory Opinion No. 2013-11 Re: Michael J. Colonair QUESTION PRESENTED The Petitioner, a member of the Pascoag Fire District Board of Commissioners, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from seeking or accepting employment as a volunteer firefighter in the Pascoag Fire District. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Pascoag Fire District Board of Commissioners, a municipal elected position, is prohibited by the Code of Ethics from seeking or accepting employment as a volunteer firefighter in the Pascoag Fire District while holding office as a Commissioner and for a period of one (1) year after leaving his position as a Commissioner. The Petitioner was elected on September 10, 2012, to serve as a member of the Pascoag Fire District Board of Commissioners (“Board”). He informs that he receives a stipend of $500 per year for his service on the Board. He states that the Board consists of five (5) elected Commissioners, who are vested with the full charge, control and management of all the property and finances of the Fire District. He informs that the Board hires the Fire Chief, who then appoints the Deputy Chiefs and officers of the two fire companies, Hose Company #1 and Hose Company #2. He represents that all of the firefighters in the Pascoag Fire District (“Fire District”) are volunteers, but receive stipends for their service and are considered to be independent contractors for tax purposes. The Petitioner states that he served as a volunteer firefighter in the Fire District for Hose Company #1 from 1980 to 1991. He informs that he resumed his service as a volunteer firefighter and rescue driver in 2011, remaining in that position until September 5, 2012, when he resigned in order to run for a position on the Board. At this time, the Petitioner seeks advice as to whether the Code of Ethics permits him to resume his employment as a volunteer firefighter while simultaneously serving on the Board. He states that, given his previous service, he would submit a written request to Hose Company #1 asking to be reinstated as a volunteer firefighter and the members of Hose Company #1 would vote whether or not to reinstate him. If he is permitted to serve as a volunteer firefighter, he states that, in addition to the stipend he receives for his service on the Board, he will be eligible to receive a stipend of up to $500 per year based upon the percentage of fire calls that he responds to. Additionally, the Petitioner would also serve as a rescue vehicle driver, for which he would receive a stipend of $15 for each trip to and from the hospital. If such simultaneous service is permitted, the Petitioner represents that he would recuse himself from the Board’s discussions and votes regarding the monthly approval of the fire and rescue volunteer stipends. Commission Regulation 36-14-5014 (“Regulation 5014”), entitled “Municipal Official Revolving Door” provides: (a) No municipal elected official or municipal school committee member, whether elected or appointed, while holding office and for a period of one (1) year after leaving municipal office, shall seek or accept employment with any municipal agency in the municipality in which the official serves, other than employment which was held at the time of the official’s election or appointment to office or at the time of enactment of this regulation, except as provided herein. (1) For purposes of this regulation, “employment” shall include service as defined in R.I. Gen Laws § 36-14-2(4) and shall also include service as an independent contractor or consultant to any municipality or municipal agency, whether as an individual or a principal of an entity performing such service. (2) For purposes of this regulation, “municipal agency” shall include any department, division, agency, commission, board, office, bureau, authority, quasi-public authority, or school, fire or water district and any other agency that is in any branch of municipal government and exercises governmental functions other than in an advisory nature. Regulation 5014(a). Notably, the Code of Ethics specifically includes fire districts in both the statutory and regulatory definitions of a “municipal agency.” R.I. Gen. Laws § 36-14-2(8)(ii); Regulation 5014(a)(2). In Advisory Opinion 2008-23, the Commission opined that a Johnston School Committee member, who was also the owner and operator of auto body and auto sales company, was prohibited from contracting to provide auto body repair services to the Town and was also prohibited from contracting to provide towing services to the Town for the duration of his service on the School Committee and for a period of one (1) year after leaving office. There, although the petitioner’s business was on the Town’s towing list for approximately thirty (30) years, the business was removed from the list some years prior to his election to the School Committee. Additionally, the petitioner did not have a pre-existing contract with the Town to provide auto body services. Contra A.O. 2008-72 (opining that an East Providence City Council member, who was also the owner of a towing company, was permitted to continue to serve on the East Providence Tow list, given that his service on the Tow list was held at the time of his election to the City Council). The Petitioner’s advisory opinion request also included a copy of a legal opinion from the Fire District’s attorney, dated November 12, 2009, that supports the Petitioner’s contention that such simultaneous service would be permitted. However, the Fire District’s attorney failed to consider Regulation 5014, which was adopted by the Ethics Commission in October 2006. It appears that the Fire District’s attorney relied upon the legal analysis in Advisory Opinion 2004-17, which was issued prior to the adoption of Regulation 5014. In Advisory Opinion 2004-17, the Commission opined that a member of the Tiogue Fire District Council could simultaneously serve as a volunteer firefighter in the same district, provided that he recused from any matters that could financially impact him. However, that opinion’s analysis is no longer controlling given the subsequent enactment of Regulation 5014. Furthermore, even if Regulation 5014 had been applied to the facts presented in Advisory Opinion 2004-17, its conclusion would have remained the same because, unlike in the present matter, that petitioner had held the position of volunteer firefighter at the time of his election to the Fire District Council. In the instant matter, regulation 5014 prohibits the Petitioner from seeking or accepting employment with the Fire District, other than employment that was held at the time of his election to office, while he is holding office as a Fire Commissioner and for a period of one (1) year after leaving office. Service as a volunteer firefighter in the Fire District constitutes “employment” as it is defined in Regulation 5014 because volunteer firefighters are paid for their services as independent contractors. Here, the Petitioner resigned from his position as a volunteer firefighter prior to his election to the Board. Accordingly, Regulation 5014 prohibits the Petitioner from seeking reinstatement as a volunteer firefighter in the Fire District for the duration of his service on the Board and for a period of one (1) year after leaving office. Code Citations: § 36-14-2(8) Commission Regulation 36-14-5014 Related Advisory Opinions: A.O. 2008-72 A.O. 2008-33 A.O. 2004-17 Keywords: Dual Public Roles Revolving Door