Advisory Opinion No. 2017-36 Rhode Island Ethics Commission Advisory Opinion No. 2017-36 Approved: August 8, 2017 Re: Karen Verrengia QUESTION PRESENTED: The Petitioner, a member of the Rhode Island Energy Efficiency and Resource Management Council, a state appointed position, requests an advisory opinion regarding what limitations or prohibitions, if any, the Code of Ethics imposes upon her in carrying out her public duties, given that her private employer is a subcontractor for National Grid, whose energy efficiency programs the Council monitors and evaluates. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Rhode Island Energy Efficiency and Resource Management Council, a state appointed position, is prohibited by the Code of Ethics from participating in any matters that involve or financially impact her or her private employer. The Petitioner represents that in June of 2015, she was appointed by the Governor of the State of Rhode Island to serve as the chairperson of the Rhode Island Energy Efficiency and Resource Management Council (“Council”). The Petitioner explains that the Council has a statutory responsibility to oversee National Grid’s[1] energy efficiency programs, by “[d]evelop[ing] and recommend[ing] for implementation plans, programs and standards for energy conservation, energy efficiency, and diversification of energy resources.” R.I. Gen. Laws § 42-140.1-5. The Petitioner further represents that the Council sets energy saving targets to maximize benefits for all Rhode Islanders, and such targets serve as guideposts as National Grid develops its Three-Year Plan and its more detailed Annual Plans.[2] Furthermore, the Council monitors and evaluates the effectiveness of National Grid’s energy efficiency programs and may request audits, including performance audits, in order to effectuate such evaluations. See Section 42-140.1-5. The Petitioner states that the Council may then make findings and recommendations to National Grid with regard to modifications or the continuation of any programs which it has authority to monitor and evaluate. The Petitioner further represents that the Council reviews National Grid’s budget and may propose a decrease or increase in the budget for certain programs. Thereafter, the Council votes on the budget and recommends it for final approval by the Public Utilities Commission. In order to meet its obligations and reach the State of Rhode Island’s energy efficiency goals, National Grid hires subcontractors to work under the various programs. The Petitioner states that one such subcontractor is CLEAResult, a provider of energy efficiency services, hired by National Grid to perform under its Residential New Construction Program, Low Income Program, Energy Efficient HVAC Program, and the Rhode Island Code Compliance Enhancement Incentive Program. The Petitioner represents that, in her private capacity, she is employed by CLEAResult as a field manager to coordinate, oversee and provide “Energy Code” trainings, under National Grid’s Rhode Island Code Compliance Enhancement Incentive Program, for building officials, inspectors, and trade professionals throughout the State of Rhode Island. Based on all of the above, the Petitioner requests an advisory opinion regarding what limitations or prohibitions, if any, the Code of Ethics imposes upon her in carrying out her public duties, given that her private employer is a subcontractor for National Grid, whose energy efficiency programs the Council monitors and evaluates. 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. 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). The Code of Ethics also 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). The above provisions of the Code of Ethics prohibit the Petitioner from taking any official action, as a member of the Council, that are likely to have a financial impact upon her employer. In Advisory Opinion 2015-10, for example, the Ethics Commission opined that a member of the North Providence Planning Board was prohibited by the Code of Ethics from participating in the Planning Board’s consideration of Washington Trust Company’s application to construct a new branch, given that her employer had an ongoing business relationship with the Washington Trust Company. The Ethics Commission based its decision on the fact that the petitioner’s employer and Washington Trust had a long-standing business relationship where her employer was Washington Trust’s preferred sign contractor and routinely received contracts for the manufacture and installation of signs at Washington Trust’s new bank locations. Thus, it was reasonably foreseeable that if Washington Trust received all the necessary approvals from the Town, then the petitioner’s employer would receive a contract from Washington Trust to manufacture and install the signs for the new branch. See also A.O. 2013-18 (opining that a member of the Health Services Council (“HSC”) was required to recuse from the HSC’s consideration of Care New England Health System’s application to merge with Memorial Hospital, given his various connections to Butler Hospital, a Care New England Health System operating unit, as both an individual member of the Corporation of Butler and as an independent contractor to the hospital). Here, the Petitioner represents that her employer regularly contracts with National Grid on energy efficiency projects that are monitored and evaluated by the Council. Furthermore, the Petitioner states that in reviewing National Grid’s three-year and annual plans, the Council may make findings and recommendations to National Grid with regard to modifications or the continuation of any programs. The Council also reviews and votes on National Grid’s budget and may recommend that National Grid expand or decrease its budget for energy efficiency programs, including the ones on which her employer performs. For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner is prohibited by the Code of Ethics from participating in any Council matters that involve or financially impact her employer. In her letter requesting an advisory opinion, the Petitioner did not raise any particular matters coming before the Council that might involve such conflicts of interest. Therefore, the Ethics Commission is able to offer only general guidance to the Petitioner, advising her that she should remain diligent in identifying potential conflicts and recuse consistent with section 36-14-6, or seek additional guidance from the Ethics Commission as needed. 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. 2015-10 A.O. 2013-18 A.O. 2004-38 Other Related Authority 42-140.1-5 Keywords: Private Employment Recusal [1] National Grid is Rhode Island’s only gas and electric company. [2] Rhode Island Energy Efficiency and Resource Management Council, 2017 Annual Report, http://www.rieermc.ri.gov/documents/annual/7_2017%20EERMC%20Annual%20Re….