Advisory Opinion No. 2017-29 Rhode Island Ethics Commission Advisory Opinion No. 2017-29 Approved: June 20, 2017 Re: Kristi Agniel QUESTION PRESENTED: The Petitioner, a member of the Providence Historic District Commission, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from simultaneously serving as a member of the Board of Directors of the Providence Preservation Society. RESPONSE: It is the opinion of the Ethics Commission that the Petitioner, a member of the Providence Historic District Commission, is not prohibited by the Code of Ethics from simultaneously serving as a member of the Board of Directors of the Providence Preservation Society. The Petitioner is a member of the Providence Historic District Commission (“PHDC”), appointed by the mayor of the City of Providence (“City”) and receiving no remuneration for her services. The Petitioner explains that the PHDC is a design review body that was created to protect the unique physical character, historic fabric and visual identity of the City by regulating the exterior work performed on properties located within the local historic districts. The Petitioner further represents that she has been asked to serve, without remuneration, on the Board of Directors of the Providence Preservation Society (“PPS”), a non-profit organization that advocates for historic preservation and enhancement of the City’s unique character through thoughtful design and planning, provides comments and recommendations on real estate development projects, and offers preservation education. The Petitioner represents that it is not uncommon for PPS representatives to appear before the PHDC and speak during times when public comment is permitted. Given this set of facts, the Petitioner seeks guidance from the Ethics Commission as to whether the Code o f Ethics prohibits her from simultaneously serving as a member of the PHDC and a member of the Board of Directors of the PPS , and as to the limitations that the Code of Ethics places upon her when PPS representatives speak during the public comment period of PHDC meetings. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A public official will have an interest in substantial conflict with her official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of her activity, to herself, a family member, a business associate, or any business by which she is employed or which she represents. Section 36-14-7(a) . The Code of Ethics also provides that a public official may not use her office to obtain financial gain for herself, a family member, a business associate, an employer, or any business that she represents. Section 36-14-5(d). A public official may not represent herself , or any other person, or act as an expert witness before any municipal agency of which she is a member or by which she is employed . Section 36-14-5(e)(1)-(3). Furthermore, a public official must recuse herself from participation when her business associate appears or presents evidence or arguments before her municipal agency . Commission Regulation 36-1 4-5002(a)(2) . A “business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective. ” Section 36-14-2(3). Previously, the Ethics Commission has concluded that public officials are “business associates” of entities, including non-profit organizations, for which they serve either as members of the Board of Directors or in other leadership positions that permit them to affect the financial objectives of the organization. See, e.g. , A.O. 2014-14 ( the Director of the RI DEM , who was also a Director of the RI 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 ( 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 pro posed amendment to the Zoning Ordinance that was requested by the TYC). Accordingly, here, the Petitioner would be come a “business associate” of the PPS if she were to join its Board of Directors . Here, none of the above provisions of the Code of Ethics prohibit the Petitioner’s simultaneous service as a member of the PHDC and a member of the Board of Directors of the PPS. See A.O. 2005-48 (Director of the Rhode Island Underground Storage Tank Financial Responsibility Fund Review Board, a state appointed position, could accept membership to the Board of Directors of the National Leaking Underground Storage Tank program, a private, national organization); A.O. 2001-49 (member of the Burrillville Redevelopment Agency could simultaneously serve as the Director of the Industrial Foundation of Burrillville, a private non-profit corporation); A.O. 99-137 (member of the Commission on the Deaf and Hard of Hearing could simultaneously serve as the president of a local chapter of SHHH, a non-profit organization representing hard of hearing persons). However, such simultaneous public and private service requires the Petitioner to remain vigilant in identifying and managing any conflicts of interest that may arise between her public and private duties. In the present matter, because the Petitioner would be a “business associate” of the PPS, the Code of Ethics would prohibit her from sharing any confidential information with the PPS, or from representing the organization’s interests before the PHDC. Furthermore, the Petitioner would be required to recuse from participating in any PHDC discussions or decision-making that financially impact the PPS, as well as from any matters in which PPS representatives appear or present evidence or arguments. See Commission Regulation 36-14-5002(a)(2). However, Commission Regulation 5002(b)(2) contains an exception providing that a person subject to the Code of Ethics is not required to recuse herself when: The person’s business associate . . . is before the person’s state or municipal agency during a period when public comment is allowed, to offer comment on a matter of general public interest, provided that all other members of the public have an equal opportunity to comment, and further provided that the business associate . . . is not otherwise a party or participant, and has no personal financial interest, in the matter under discussion. (Emphasis added). Accordingly, here, the Petitioner is not required to recuse if representatives of the PPS appear and speak before the PHDC during a public comment period, provided that all of the requirements of Regulation 5002(b)(2) are satisfied, namely, that the PPS is not a party or participant in the matter, has no financial interest in the matter, and its appearance is during the public comment period in which all other members of the public have an equal opportunity to comment. 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(3) § 36-14-5(a) § 36-14-5(d) § 36-14-5(e) § 36-14-5(f) § 36-14-7(a) Commission Regulation 36-14-7001 Commission Regulation 36-14-5002 Related Advisory Opinions: A.O. 99-137 A.O. 2001-49 A.O. 2005-48 A.O. 2012-28 A.O. 2014-14 Keywords: Business Associate Recusal Public Comment