Advisory Opinion No. 2014-19 Rhode Island Ethics Commission Advisory Opinion No. 2014-19 Approved: June 17, 2014 Re: Ronald A. McKenna QUESTION PRESENTED: The Petitioner, the Treasurer and the Tax Collector for the Manville Fire District, both regional elected positions, requests an advisory opinion regarding whether the Code of Ethics prohibits him from seeking election to serve as a Fire Warden in the Manville Fire District and, if elected, from simultaneously holding all three positions. RESPONSE: It is the opinion of the Ethics Commission that the Petitioner, the Treasurer and the Tax Collector for the Manville Fire District, both regional elected positions, is not prohibited by the Code of Ethics from seeking election to serve as a Fire Warden in the Manville Fire District and, if elected, from simultaneously holding all three positions. The Petitioner currently serves as both the elected Treasurer and Tax Collector of the Manville Fire District (“Fire District”). He states that he has been serving simultaneously in both positions for the last ten (10) years. He informs that the duties of the Tax Collector include collecting all taxes levied and assessed by the Fire District, as well as any accrued interest; presenting a status report on tax delinquencies at the monthly Board of Fire Wardens meetings; and presenting a report on the amounts collected and outstanding balances at the annual meeting. Manville Fire District By-Laws (“By-Laws”) Art. III, § 4. He further informs that the duties of the Treasurer include collecting all monies from the Tax Collector and other sources; depositing those funds in the bank; signing all notes and register bonds issued by the Fire District; presenting a status report on the Fire District’s funds at monthly Board of Fire Warden’s meetings; closing all financial records on September 30th each year; and presenting a written report at the annual meeting enumerating the receipts and expenditures for the preceding year. By-Laws Art. 3, § 5. The Petitioner represents that the following positions constitute the officers of the Fire District: one (1) moderator; one (1) clerk; one (1) treasurer; one (1) tax collector; three (3) assessors of taxes; two (2) auditors; and five (5) fire wardens. Manville Fire District Charter (“Charter”) § 5. He informs that all of the Fire District’s officers are elected by the qualified voters of the Fire District at the annual meeting, with tax assessors, auditors and fire wardens elected to two (2) year terms, and all other officers elected to one (1) year terms. Charter §§ 5 & 6. The Petitioner states that he would like run for election to the position of Fire Warden in September 2014, in addition to continuing to seek re-election for his positions as Treasurer and Tax Collector. He states that Board of Fire Wardens holds monthly meetings in order to manage the finances of the Fire District and oversee the operations and maintenance of the fire station and the fire equipment. He represents that the Board of Fire Wardens must approve all bills against the district before the bills are sent to the Treasurer for payment. The Petitioner represents that he currently receives stipends for performing the duties of Treasurer and Tax Collector totaling approximately $16,000 per year. He states that Fire Wardens each receive a stipend of $500 per year. According to the Fire District’s By-Laws, the Board of Fire Wardens does not have the authority to increase or decrease the salary of any of the Fire District’s officers. By-Laws Art. III, § 8. The Petitioner informs that the stipends for the Fire District’s officers are reviewed and determined by the qualified electors at the annual meeting. He states that he would recuse from any official duties, in any of the positions that he holds in the Fire District, in which it is reasonably foreseeable that he may be financially impacted. Given the above representations, the Petitioner seeks guidance as to whether he may seek election to the position of Fire Warden and, if elected, simultaneously serve in as the Fire District’s Treasurer, Tax Collector and Fire Warden. 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). Finally, the Code of Ethics provides that a public official shall not accept other employment that would impair his independence of judgment as to his official duties or require or induce him to disclose confidential information acquired by him in the course of his official duties. Section 36-14-5(b). Although, the Commission has not considered this precise question before, it has considered whether a person could hold three (3) positions, simultaneously within the same municipality. In Advisory Opinion 2009-27, the Petitioner was simultaneously a municipal appointed member of both the East Providence Planning Board and the East Providence Historic District Commission, in addition to being an East Providence Police Officer, a municipal employee position. In that case, the Commission opined that the Code of Ethics did not prohibit the petitioner from serving the municipality simultaneously in all three (3) positions, but the existence of any potential conflict of interest would require a matter by matter analysis and he was advised to be vigilant in identifying any matters coming before his municipal agencies that had the potential to financially impact himself. The Commission also noted that Advisory Opinion 2009-27 only addressed whether such simultaneous service was prohibited by the Code of Ethics, and did not opine as to whether any municipal charter provision, ordinance or any other provision of law prohibited such simultaneous service, as those issues are outside of the Commission’s jurisdiction. Similarly, in Advisory Opinion 2010-57, the Commission opined that the Chairman of the Board of Directors for the Coventry Fire District, a municipal elected position, was not prohibited from simultaneously holding office as a member of the Coventry Town Council, also a municipal elected position. However, the Commission advised the petitioner that he was required to conduct a matter by matter analysis of potential conflicts or circumstances in which it was reasonable foreseeable that there would be financial impact upon him personally and to seek further advice from the Ethics Commission or recuse in accordance with § 36-14-6. See also A.O. 2010-48 (opining that the Code did not bar simultaneous service as a Fire Commissioner for the East Greenwich Fire District and as a member of the East Greenwich Town Council). In contrast, however, the Commission opined in Advisory Opinion 2013-11 that a member of the Pascoag Fire District Board of Commissioners, a municipal elected position, was prohibited 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 Commissioner, based upon the municipal revolving door prohibition set forth in Commission Regulation 36-14-5014. In the present matter and consistent with prior advisory opinions, the Commission concludes that the above provisions of the Code of Ethics do not create an absolute bar to the Petitioner’s simultaneous service as the Treasurer, Tax Collector and Fire Warden in the Fire District, given that all three (3) positions are elected positions. Although the Board of Fire Wardens is responsible for the management of the Fire District as a whole, each position has distinct duties. According to the Petitioner’s representations and the Fire District Charter and By-Laws attached to his advisory opinion request: the Fire Wardens manage the property of the district and oversee the operation of the fire station; the Tax Collector collects the taxes due and gives the monies to the Treasurer; the Treasurer pays the Fire District’s bills once they are approved by the Board of Fire Wardens. Furthermore, the Petitioner states that the stipends for each position are determined at the annual meeting by the Fire District’s qualified electors and that he would recuse from any matter in which he may be financially impacted. Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from seeking election to serve as a Fire Warden in the Manville Fire District and, if elected, from simultaneously holding all three (3) elected positions. However, section 5(a), (b) and (d) of the Code of Ethics require a matter by matter evaluation as to whether any substantial conflicts of interest exist with respect to carrying out the Petitioner’s official duties in the public interest. Specifically, the Petitioner is advised that if any matters come before him as he is carrying out his duties, in any of his public roles, that present potential conflicts of interest not otherwise contemplated in this opinion, or circumstances in which it is reasonably foreseeable that there will be a financial impact upon the Petitioner personally, he should either request further advice from this Commission or recuse from the matter in accordance with § 36-14-6. 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, charter provision, or any other provision of law may have on this situation. Code Citations: § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5014 Related Advisory Opinions: A.O. 2013-11 A.O. 2010-57 A.O. 2010-48 A.O. 2009-27 Keywords: Dual Public Roles