Advisory Opinion No. 2016-35 Rhode Island Ethics Commission Advisory Opinion No. 2016-35 Approved: October 18, 2016 Re: Michael K. Daley QUESTION PRESENTED: The Petitioner, a member of the State Board of Examiners of Electricians, a state appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in an appeal hearing for TradeSource, Inc., a temporary employment agency which employs and provides the services of primarily non-union skilled tradespeople, given that the Petitioner is privately employed by the International Brotherhood of Electrical Workers. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the State Board of Examiners of Electricians, a state appointed position, is not prohibited by the Code of Ethics from participating in an appeal hearing for TradeSource, Inc., a temporary employment agency which employs and provides the services of primarily non-union skilled tradespeople, notwithstanding that the Petitioner is privately employed by the International Brotherhood of Electrical Workers. The Petitioner has been a licensed journeyman electrician and contractor for over thirty (30) years. In 2011, the Petitioner became employed by the International Brotherhood of Electrical Workers (“IBEW”) Local 99, as a Business Manager. In that same year, the Petitioner was appointed by the Governor to become a member of the State Board of Examiners of Electricians (“the Board”). The Board is a part of the Division of Regulation in the Rhode Island Department of Labor and Training (“DLT”), and was established by statute to act in an advisory capacity to the Director of DLT in the areas of policy-making, administration of examinations and the enforcement of laws and regulations applicable to electrical contractors. See R.I. Gen. Laws § 5-6-4(b) and (c). The composition of the seven-member Board is established by statute,[1] with the Petitioner serving in the seat reserved for a “journeyperson electrician to represent organized labor[.]” Section 5-6-4(a)(1)(vi). Among its functions, the Board acts as a hearing panel when individuals or businesses are cited by a DLT Investigator for violations of statutory standards or requirements for electrical contractors. At such hearings, after reviewing evidence and hearing testimony, the Board votes to make a recommendation to the DLT Director concerning whether a violation has occurred and whether a financial penalty should be imposed. The Petitioner states that the penalty for a first offense is Five Hundred Dollars ($500), and the penalty for a subsequent offense is Nine Hundred Fifty Dollars ($950). Section 5-6-32. The Board’s findings and recommendations are purely advisory, and the DLT Director is vested with the ultimate discretion and authority to find violations and impose penalties. Id. The Petitioner states that a hearing has been scheduled before the Board regarding TradeSource, Inc. (“TradeSource”), a temporary employment agency which employs primarily non-union electricians and provides them on a contract basis for primarily non-union projects. According to the Petitioner, TradeSource has been cited by a DLT Investigator for failing to pull permits for electrical work performed by its employees. The Petitioner advises that TradeSource’s position is that it merely supplied labor to a project, and that obtaining permits is the responsibility of the project managers who contracted with TradeSource to obtain temporary workers. The Petitioner informs that TradeSource has requested that the Petitioner recuse from its hearing before the Board, alleging that because TradeSource uses primarily non-union electricians and provides them for non-union jobs, the Petitioner cannot be impartial given his employment as Business Manager for IBEW. In light of TradeSource’s challenge, the Petitioner has requested the instant advisory opinion. The Code of Ethics prohibits a public official such as the Petitioner from having any interest, financial or otherwise, direct or indirect, or engaging in any business, employment, transaction or professional activity, which is in substantial conflict with the proper discharge of his duty in the public interest. R.I. Gen. Laws § 36-14-5(a). Such a “substantial conflict” exists if it is reasonably foreseeable that the public official, any member of his family, his business associate or employer, will derive a direct monetary gain or suffer a direct monetary loss, as the case may be, by reason of his official activity. Section 36-14-7(a); Regulation 36-14-7001. The Code of Ethics also prohibits public officials from accepting other employment which will either impair his independence of judgement as to his official duties, or induce him to disclose confidential information. Section 36-14-5(b). Finally, the Code of Ethics prohibits a public official from using his public office to obtain financial gain, other than that provided by law, for himself or for his family member, business associate or employer. Section 36-14-5(d). In the present matter, the Board is holding a hearing to determine whether TradeSource violated a state law and, if so, whether it should pay a civil penalty of up to Five Hundred Dollars ($500). The Petitioner’s employer, IBEW, is neither a party nor a participant in the hearing, and does not appear to have any financial interest in its outcome. Furthermore, the Petitioner has expressly represented that he will base his vote on the testimony and evidence presented, and not be influenced by whether or not TradeSource employs non-union workers. Under such circumstances, and absent any other information indicating a conflict of interest, the Code of Ethics does not require the Petitioner’s recusal. See A.O. 2013-9 (Woonsocket Zoning Board member may participate in a zoning variance hearing, notwithstanding that his private business partner had voiced an opinion at a prior hearing that the variance request did not meet legal requirements, where neither the petitioner nor his business partner would be financially impacted by the Zoning Board’s decision or the applicant’s use of his property). This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. 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. 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, the Commission provides no opinion regarding whether the Petitioner, sitting in a quasi-judicial capacity as a member of the State Board of Examiners of Electricians, should be disqualified from participating because of bias or prejudice. See Champlin’s Realty Assoc. v. Tikoian, 989 A.2d 427 (R.I. 2010). Code Citations: § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-7(a) Regulation 36-14-7001 Related Advisory Opinions: A.O. 2013-9 Other Related Authority § 5-6-4 § 5-6-32 Champlin’s Realty Assoc. v. Tikoian, 989 A.2d 427 (R.I. 2010). Keywords: Bias Employer Recusal