Advisory Opinion No. 2015-30 Rhode Island Ethics Commission Advisory Opinion No. 2015-30 Approved: July 21, 2015 Re: Bruce Ogni QUESTION PRESENTED: The Petitioner, a member of the Lincoln Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him and his spouse from participating in the Town’s “50/50 Sidewalk and Curb Replacement Fund Program,” available to all homeowners in the Town, whereby the Town pays for half of the cost of replacing the curbing and sidewalks on a residential property. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Lincoln Town Council, a municipal elected position, is not prohibited by the Code of Ethics from participating in the Town’s “50/50 Sidewalk and Curb Replacement Fund Program,” available to all homeowners in the Town, whereby the Town pays for half of the cost of replacing the curbing and sidewalks on a residential property. The Petitioner was elected to the Lincoln Town Council (“Town Council”) in November 2014 and was sworn in to office in January 2015. He represents that in 2007, a prior Town Council adopted an ordinance to create the 50/50 Sidewalk and Curb Replacement Program (“the Program”). Town of Lincoln Code of Ordinances, ch. 220, art. IX (2013). Under the Program, residents may apply to participate in a program whereby the Town, through a previously established fund, will pay for fifty percent (50%) of the cost of replacing a residence’s old or damaged sidewalk and curbing. The Program permits participating homeowners to pay the remaining fifty percent (50%) of the cost in annual installments over a period of up to ten (10) years. Id. The Petitioner states that he and his wife have owned their residence at 9 Nottingham Drive in the Town for approximately fifteen (15) years. He asserts that several other homeowners in his neighborhood are participating in the Program this summer, and he would like to participate as well if permitted by the Code of Ethics. The Petitioner represents that he has inquired as to the Town Council’s role, if any, in the administration of the Program. He states that, upon information and belief, the Town Council has no involvement in the approval of participants, or in the ongoing funding or administration of the Program. Although the Town Council is involved in approving the highway director’s selection of the contractor who performs the sidewalk and curb replacement work, the current contractor was selected prior to the Petitioner’s election to the Town Council. A person subject to the Code of Ethics shall not have any interest, financial or otherwise, direct or indirect, which is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if he has reason to believe or expect that he or any family member or business associate, or any business by which he is employed or represents, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). He also is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents. Section 36-14-5(d). The Commission considered a somewhat analogous fact pattern in Advisory Opinion 2006-19. There, the Solicitor for the Town of South Kingstown asked whether he could participate in a low interest loan program available to South Kingstown residents to finance replacement of a cesspool or failing septic system, given that the program had been created through an agreement between the Town and the Rhode Island Clean Water Finance Agency and that, as Solicitor, the petitioner had previously reviewed documents and contracts leading to South Kingstown’s participation in the loan program. Although the Solicitor was instructed to recuse from any matters relating to his loan that might come before him as the Solicitor, the Commission opined that he could participate in the loan program because the facts did not indicate a risk of favoritism in loan approval or administration. See also A.O. 2001-48 (opining that legal counsel for the Providence Neighborhood Housing Corporation (PNHC) could participate in the City of Providence’s zero-interest loan program for municipal employees administered by PNHC, notwithstanding the fact that the petitioner participated in the development of the program, but provided that he recused from any PNHC review or servicing of his loan); A.O. 2001-5 (West Warwick Town Councilor’s sibling may apply for and receive Community Development Block Grant notwithstanding the fact that the Councilor voted to approve the Town’s year 2000 CDBG grant, provided that the Councilor recused from consideration of his sibling’s application). Here, the Petitioner represents that that the Program was established many years prior to his election to the Town Council and that it is available to any homeowner in the Town who wishes to participate. Furthermore, he advises that participation in the Program is a matter of public record and that the Town Council has no ongoing oversight over the funding or administration of the Program. While the Town Council does play a role in the selection of a contractor to perform the curb and sidewalk replacement work, the Petitioner notes that the current contractor was selected prior to his election. Under these circumstances, there does not appear to be a risk of favoritism in the Petitioner’s application or participation in the Program. Based on the Petitioner’s representations herein, and consistent with our prior advisory opinions, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from participating in the Town’s 50/50 Sidewalk and Curb Replacement Fund Program. However, the Petitioner is cautioned that if any matters involving the Program come before the Town Council that may impact him financially based on his participation in the Program, he should either seek additional guidance from the Ethics Commission or recuse from participation and file a statement of conflict of interest pursuant to 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: § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2006-19 A.O. 2001-48 A.O. 2001-5 Keywords: Financial interest Government loans Recusal