Advisory Opinion No. 2015-42 Rhode Island Ethics Commission Advisory Opinion No. 2015-42 Approved: October 20, 2015 Re: Allison G. Cote QUESTION PRESENTED: The Petitioner, a senior compliance officer at the Rhode Island Commission for Human Rights, a state employee position, requests an advisory opinion regarding whether she is prohibited by the Code of Ethics from serving as a member of the Maplehill Mobile Home Park Residents Association Board of Directors. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a senior compliance officer at the Rhode Island Commission for Human Rights, a state employee position, is not prohibited by the Code of Ethics from serving as a member of the Maplehill Mobile Home Park Residents Association Board of Directors. The Petitioner is a senior compliance officer at the Rhode Island Commission for Human Rights (“CHR”). The CHR consists of a staff of fourteen individuals and seven commissioners, who are appointed by the Governor with the advice and consent of the Senate. R.I. Gen. Laws § 28-5-8. The [CHR] enforces Rhode Island antidiscrimination laws in the areas of employment, housing, public accommodations, credit and delivery of services. Through impartial investigation, formal and informal resolution efforts, predetermination conferences and administrative hearings, the [CHR] seeks to ensure due process for both complainants (charging parties) and respondents, to provide redress for victims of discrimination, and to properly dismiss cases against businesses and individual respondents when charges of discrimination lack evidentiary support.[1] The Petitioner represents that her duties at the CHR involve investigating complaints related to allegations of discrimination in the areas employment and public accommodations. She states that she has no duties relative to complaints of alleged housing discrimination, which are handled by a different CHR investigative team. The Petitioner states that, in her private capacity, she is a resident of the Maplehill Mobile Home Park (“Maplehill”). She informs that each resident of Maplehill may pay an $800 annual fee to join the Maplehill Residents Association, which entitles that member to participate in and vote at Maplehill’s general membership meetings and to a $25 monthly rent reduction. She informs that she was recently elected by the general members of the Residents Association to serve as the secretary of its Board of Directors (“Board”).[2] The Petitioner represents that a former member of the Board has questioned whether the Petitioner’s employment at the CHR, which has jurisdiction over complaints of housing discrimination, prevents her from serving on Maplehill’s Residents Association Board. Out of an abundance of caution, the Petitioner seeks guidance from the Ethics Commission as to whether her membership on the Board of the Maplehill Residents Association constitutes a conflict of interest under the Code of Ethics with her public employment at the CHR. The Petitioner states that she does not investigate housing complaints at the CHR. She further states that she would recuse from investigating any charges of discrimination against Maplehill and any other matters in which she has personal knowledge of the employer or complainant. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her 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 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). Additionally, the Code prohibits a public official 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. Section 36-14-5(d). 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). The Commission has previously opined that persons are “business associates” of the entities for which they serve as either officers or members of the Board of Directors, or in some other leadership position that permits them to affect the financial objectives of the organization. See, e.g., A.O. 2015-33 (opining that the Director of the Community Development Consortium was prohibited from participating in the Consortium’s approval of payments to the Washington County Community Development Corporation (“WCCDC”), given that he was a member of the WCCDC’s Board of Directors); A.O. 2014-14 (opining that the Director of the Rhode Island Department of Environmental Management (“DEM”), who was also a Director of the Rhode Island Boy Scouts (“Boy Scouts”), was a business associate of the Boy Scouts and was, thus, required to recuse from participating in any DEM decisions that would financially impact the Boy Scouts, as well as from any matters in which a Boy Scout representative appeared to represent the organization’s interests); A.O. 2012-28 (opining that a Tiverton Planning Board member, who was also a member of the Board of Directors of the Tiverton Yacht Club (“TYC”), was a business associate of the TYC and, therefore, was required to recuse from participating in the Planning Board’s consideration of a proposed amendment to the Tiverton Zoning Ordinance that was requested by the TYC).[3] The Code of Ethics generally does not prohibit public officials and employees from serving in leadership positions or on boards of private organizations; rather, the Code of Ethics prohibits public officials and employees from taking official actions that will result in a direct financial benefit or detriment to those organizations. Here, it is clear that the Petitioner is a “business associate” of the Maplehill Residents Association because of her membership on its Board. Therefore, the Code of Ethics requires the Petitioner to recuse from all CHR matters involving the Maplehill Mobile Home Park and the Maplehill Residents Association.[4] However, provided that she recuses in accordance with the advice set forth herein, the Code of Ethics does not prohibit the Petitioner from serving on or performing her duties for the Board of the Maplehill Residents Association. For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from serving as a member of the Maplehill Mobile Home Park Residents Association Board of Directors. 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 Rhode Island Commission for Human Rights policy, or 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) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2015-33 A.O. 2014-29 A.O. 2014-14 A.O. 2012-28 Keywords: Business Associate Recusal