Advisory Opinion No. 2014-14 Rhode Island Ethics Commission Advisory Opinion No. 2014-14 Approved: May 13, 2014 Re: Janet L. Coit QUESTION PRESENTED: The Petitioner, the Director of the Rhode Island Department of Environmental Management, a state appointed position, requests an advisory opinion regarding the proper management of any conflicts of interest between her public duties and her potential simultaneous service as a Director of the Rhode Island Boy Scouts. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Director of the Rhode Island Department of Environmental Management, a state appointed position, is not prohibited by the Code of Ethics from serving simultaneously as a Director of the Rhode Island Boy Scouts. However, the Petitioner must be vigilant to identify and manage any conflicts of interest that may arise between her public and private duties, and is encouraged to seek further guidance from the Ethics Commission as needed. The Petitioner was appointed to the position of Director of the Rhode Island Department of Environmental Management (“RIDEM”) in January 2011. As Director of RIDEM, she has statutory powers and duties relating to, among other things, the protection, development, planning and utilization of Rhode Island’s natural resources. See R.I. Gen. Laws § 42-17.1-2. The Petitioner states that she has been asked to serve as a Director of the Rhode Island Boy Scouts (“Boy Scouts”), a Rhode Island non-profit corporation managed by volunteer officers and directors, which serves as the trustee organization for boy scout troops in Rhode Island. The Petitioner represents that over the past several years RIDEM has purchased two parcels of real estate from the Boy Scouts for open space conservation and for additional parking. However, she states that there are no plans for the acquisition of any additional Boy Scouts real estate. The Petitioner also notes that Boy Scouts troops regularly utilize properties that are owned and managed by RIDEM for hiking and other scouting activities. The Petitioner represents that such uses of RIDEM’s parks and properties are not unique to the Boy Scouts, but are available to all groups and individuals consistent with RIDEM’s mission and policies. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A public official will have an interest in substantial conflict with her official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of her activity, to herself, a family member, a business associate, or any business by which she is employed or which she represents. Section 36-14-7(a); Commission Regulation 36-14-7001. The Code of Ethics also provides that a public official may not use her office to obtain financial gain for herself, a family member, a business associate, an employer, or any business that she represents. Section 36-14-5(d). The Code of Ethics prohibits a public official from representing herself, or any other person, or acting as an expert witness before any state agency by which she is employed. Section 36-14-5(e)(1)-(3). Furthermore, a public official must recuse herself from participating in a matter in which her business associate appears before the state agency by which she is employed. Commission Regulation 36-14-5002(a)(2); Section 36-14-5(f). A “business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective. Section 36-14-2(3). Previously, the Commission has concluded that public officials are “business associates” of entities, including non-profit organizations, for which they serve either as members of the Board of Directors or in other leadership positions that permit them to affect the financial objectives of the organization. See A.O. 2013-14; A.O. 2001-49. None of the above provisions of the Code of Ethics prohibit the Petitioner’s service as a Director of the Boy Scouts. See A.O. 2005-48 (Director of the Rhode Island Underground Storage Tank Financial Responsibility Fund Review Board, a state appointed position, could accept membership to the Board of Directors of the National Leaking Underground Storage Tank program, a private, national organization); A.O. 2001-49 (member of Burrillville Redevelopment Agency could simultaneously serve as the Director of the Industrial Foundation of Burrillville, a private non-profit corporation); A.O. 99-137 (member of the Commission on the Deaf and Hard of Hearing could simultaneously serve as the president of a local chapter of SHHH, a non-profit organization representing hard of hearing persons). However, such simultaneous public and private service requires the Petitioner to remain vigilant in identifying and managing any conflicts of interest that may arise between her public and private duties. In summary, while the Petitioner may serve as both the Director of RIDEM and as a Director of the Boy Scouts, if such simultaneous service occurs then the Code of Ethics will prohibit her from sharing any confidential information with the Boy Scouts, or from representing the organization’s interests before the RIDEM. Furthermore, her leadership role with Boy Scouts as a Director will create a business association with that organization. Therefore, the Petitioner will be required to recuse from participating in any RIDEM decisions that financially impact the Boy Scouts, as well as from any matters in which a Boy Scout representative appears to represent the organization’s interests. As the executive head of RIDEM, the Petitioner’s recusal may present unusual challenges because a recusing public official generally may not delegate her decision-making authority to a subordinate. Therefore, we strongly suggest that the Petitioner seek further guidance from the Ethics Commission in the future to properly manage any conflicts of interest that may arise from interactions, potential contracts or special relationships that develop between the Boy Scouts and RIDEM. This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, or canon of professional ethics may have on this situation. Code Citations: 36-14-2(3) 36-14-5(a) 36-14-5(d) 36-14-5(f) 36-14-6 36-14-7(a) Commission Regulation 36-14-7001 Commission Regulation 36-14-5002 Related Advisory Opinions: 2013-14 2005-48 2001-49 99-137 Keywords: Business associate Memberships Non-profit boards Revolving door