Advisory Opinion No. 2015-27 Rhode Island Ethics Commission Advisory Opinion No. 2015-27 Approved: May 19, 2015 Re: Amy M. Grzybowski QUESTION PRESENTED: The Petitioner, the Director of Planning, Code Enforcement and Grants Administration for the Town of Westerly, a municipal employee position, who is also temporarily serving as Interim Town Manager, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from participating in the Town of Westerly’s review of a non-profit entity’s development proposal that may involve the Community College of Rhode Island, given that she is an online adjunct faculty member of the Community College of Rhode Island. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Director of Planning, Code Enforcement and Grants Administration for the Town of Westerly, a municipal employee position, who is also temporarily serving as Interim Town Manager, a municipal appointed position, is not prohibited by the Code of Ethics from participating in the Town of Westerly’s review of a non-profit entity’s development proposal that may involve the Community College of Rhode Island, notwithstanding that she is an online adjunct faculty member of the Community College of Rhode Island. The Petitioner represents that she has been the Director of Planning, Code Enforcement and Grants Administration (“Director”) for the Town of Westerly (“Town”) since July 2012. She informs that her duties as Director involve the management and oversight of the functions of the Department of Planning and Code Enforcement (“Department”). She states that as Director she is also tasked with promoting economic development and providing developers with guidance regarding the application process for their particular project. She also states that, as Director, she serves as an intermediary between the Department and the Town Manager. The Petitioner states that the Westerly Town Council (“Town Council”) appointed her to serve as the Interim Town Manager on April 13, 2015, as a result of the prior Town Manager’s resignation on April 8, 2015. In addition, the Petitioner has also served as the Town’s Emergency Management Director since January 2013. Currently, she represents that she is performing all three jobs. However, she states that her service as Town Manager is limited to the duration of Town Council’s nationwide search for a new Town Manager, a position for which she is not applying.[1] In addition to her municipal employment with the Town, the Petitioner informs that, since the spring of 2014, she has also been an adjunct faculty member at the Community College of Rhode Island (“CCRI”). She states that, for the past two semesters, she has taught an online course called “Introduction to Homeland Security.” She states that she is paid $2,700 per semester for teaching this course. The Petitioner informs that the Royce Family Fund, Inc. (“Royce”), a private non-profit entity, is leading a potential project to purchase land in Town, remediate the site, and build a campus for collegiate level courses and job training to be used by Electric Boat. She informs that Royce is hoping that CCRI will want to relocate its Westerly satellite campus, currently located at Westerly High School, to this new facility. The Petitioner informs that the preliminary stages of this project will be two-fold, with Royce asking the Town Council to become a partner in this project as well as Royce applying to the Westerly Planning Board (“Planning Board”) and the Westerly Zoning Board (“Zoning Board”) for development plan review and any other necessary zoning relief. She states that, in her capacity as Interim Town Manager, she will provide information and recommendations to the Town Council relevant to its decision making relating to Royce’s project. She further states that, in her capacity as Director, she may provide information to Royce regarding the development plan review process. However, she represents that she does not have any decision-making authority either as Interim Town Manager or as Director relative to Royce’s applications, given that such authority is held by the Town Council, Planning Board, Town Planner, Zoning Board, and Zoning Official respectively. Given her status as an online adjunct faculty member of CCRI, the Petitioner seeks guidance as to whether the Code of Ethics prohibits her participation in the Town’s consideration of Royce’s proposal to develop a campus for collegiate level courses and job training. She states that she has no connection to Royce and neither she nor any members of her family has a financial interest in this project. She states that, notwithstanding the fact that she teaches one online course at CCRI each semester, she can participate in the Town’s review of Royce’s project in a fair and objective manner. Under the Code of Ethics, a public official is prohibited from using her public office or confidential information received through her public office to obtain financial gain for herself, her family, her business associate, or any business by which she is employed or which she represents. R.I. Gen. Laws § 36-14-5(d). A public official must recuse herself from participation when her business associate or employer appears or presents evidence or arguments before her state or municipal agency. Commission Regulation 36-14-5002(a)(2) (“Regulation 5002”); Section 36-14-5(f). Finally, a public official shall not have any interest, financial or otherwise, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of her duties or employment in the public interest. Section 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that she, any person within her family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). A business is defined as “a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, trust or any other entity recognized in law through which business for profit or not for profit is conducted.” Section 36-14-2(2). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7). In prior advisory opinions, the Commission has consistently concluded that the Code of Ethics does not consider the relationship between a public official and a public body, such as a state or municipal agency, to be that of a “business associate.” For example, in Advisory Opinion 2014-23, the Commission opined that a member of the Rhode Island Board of Education Council on Elementary and Secondary Education (“Board of Education”) was not prohibited by the Code of Ethics from simultaneously serving as a board member of the Trinity Academy for the Performing Arts (“TAPA”), a public charter school, or from participating in Board of Education actions that directly impacted TAPA, because neither the Board of Education nor TAPA was considered to be a “business” under the Code of Ethics. Therefore, the petitioner’s memberships on the Board of Education and the TAPA Board of Directors did not constitute business associations. See also A.O. 2012-1 (opining that a member of the Rhode Island Transportation Advisory Committee (“TAC”), who was also a member of the Rhode Island Board of Governors for Higher Education, could participate in TAC discussions and votes concerning funding for institutions subject to the jurisdiction for the Board of Governors because, under the Code of Ethics, neither the Board of Governors nor TAC was considered a “business”); A.O. 2011-29 (opining that a member of the Portsmouth Planning Board, who was also a civil engineer for the Rhode Island Department of Transportation (“DOT”), could participate in the Planning Board’s consideration of a development proposal, notwithstanding that in her capacity as a DOT engineer she had been reviewing the same property to ensure that the state’s property interests were protected). In the present matter, the central question is whether the Code of Ethics prohibits the Petitioner, an employee and appointed official of the Town of Westerly, from taking action on behalf of the Town that may result in a financial impact to another public entity, CCRI, given her part-time employment as a CCRI online adjunct faculty member. Under the Code of Ethics, neither the Town, a municipal agency,[2] nor CCRI, a state agency, [3] are considered “businesses.” Therefore, the Petitioner cannot be considered a “business associate” of either the Town or CCRI. The Petitioner represents that her compensation for teaching will not be impacted if CCRI relocates its Westerly satellite campus to the Royce project. Currently, the Petitioner teaches an online course at CCRI, however, if she sought an opportunity to teach a course at CCRI’s Westerly satellite campus she could already do so at its existing location at Westerly High School. For all of these reasons, absent any other relevant fact that would implicate provisions of the Code of Ethics, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from participating in the Town of Westerly’s review of Royce’s development proposal that may involve CCRI, notwithstanding that she is an online adjunct faculty member at CCRI. Finally, the Petitioner is also cautioned that, if any matters should come before her as she is carrying out her duties in either of her public roles that may present any other potential conflict of interest that is not otherwise contemplated in this advisory opinion, she should either request further advice from this Commission or exercise the recusal provision found at section 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 canon of professional ethics may have on this situation. Code Citations: § 36-14-2(2) § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-5(f) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5002 Related Advisory Opinions: A.O. 2014-23 A.O. 2012-1 A.O. 2011-29 Keywords: Dual Public Roles [1] The Petitioner represents that the Town has advertised for the position of Town Manager with a closing date of June 5, 2015. She states that the Town hopes to have the position filled by August or September 2015. [2] Section 36-14-2(8)(ii) defines “municipal agency” as: [A]ny department, division, agency, commission, board, office, bureau, authority quasi-public authority, or school, fire or water district within Rhode Island, other than a state agency and any other agency that is in any branch of municipal government and exercises governmental functions other than in an advisory nature. [3] Section 36-14-2(8)(i) defines “state agency” as: [A]ny department, division, agency, commission, board, office, bureau, authority, or quasi-public authority within Rhode Island, either branch of the Rhode Island general assembly, or any agency or committee thereof, the judiciary, or any other agency that is in any branch of Rhode Island state government and which exercises governmental functions other than in an advisory nature.