Advisory Opinion No. 2017-39 Rhode Island Ethics Commission Advisory Opinion No. 2017-39 Approved: September 12, 2017 Re: Arthur Jacques QUESTION PRESENTED: The Petitioner, a member of the Lime Rock Board of Fire Commissioners, a municipal elected position, requests an advisory opinion regarding whether he may continue his employment as an independent contractor with the Lime Rock Fire District, a position that he has held since prior to his election to the Lime Rock Board of Fire Commissioners. RESPONSE: It is the opinion of the Ethics Commission that the Petitioner, a member of the Lime Rock Board of Fire Commissioners, a municipal elected position, may continue his employment as an independent contractor with the Lime Rock Fire District, a position that he has held since prior to his election to the Lime Rock Board of Fire Commissioners. The Petitioner represents that he was elected to the Lime Rock Board of Fire Commissioners (“Board”) on October 17, 2016, during the Annual District’s Taxpayers Meeting. The Petitioner explains that the Board authorizes and directs the payment of bills and accounts incurred by the Lime Rock Fire Department (“Fire Department”), approves the Fire Department’s purchases and budget, and handles all personnel matters, including the hiring and discharge of employees. On April 8, 2016, prior to his election to the Board, the Lime Rock Fire District hired the Petitioner as an independent contractor in the position of the Director of Plan Review for the new hotel project at the Twin River Casino. The Petitioner states that he was selected for the position by the former Chief of the Fire Department and the Chairman of the Board. The Petitioner represents that his duties include review of the fire plan for the project and performance of fire inspections at various stages of the project. The Petitioner further states that other than receiving monthly updates from him as to the progress of the project, the Board does not review any matters related to the project. Any appeals related to decisions made by the Petitioner in his capacity as the Director of Plan Review are appealable to the Rhode Island Fire Safety Code Board of Appeal and Review. Given this set of facts, the Petitioner is seeking the guidance of the Ethics Commission as to whether he may continue his employment as the Director of Plan Review. Pursuant to Commission Regulation 36-14-5006, Employment from Own Board (“Regulation 5006”), no elected or appointed official may accept any appointment or election that requires approval by the body of which he is or was a member, to any position which carries with it any financial benefit or remuneration while a member of the body and for a period of one (1) year after termination of membership, unless the Ethics Commission shall give its approval. Furthermore, Commission Regulation 36-14-5014, Municipal Official Revolving Door (“Regulation 5014”), provides that no municipal elected official “shall seek or accept” employment with any municipal agency in which said official serves, “other than employment which was held at the time of the official’s election or appointment to office.” See Regulation 5014 (a). Although regulations 5006 and 5014 prohibit the Petitioner from accepting a paid position with the Lime Rock Fire District while serving on the Board and for one (1) year thereafter, the prohibitions do not bar the Petitioner’s continuation in his current employment as the Director of Plan Review, given that he was hired prior to his election to the Board. See A.O. 2002-21 (concluding, inter alia, that since petitioner’s service as Director of after school dance programs preceded her election to the Johnston School Committee, she could continue to serve in said position without running afoul of the Code of Ethics). However, the Petitioner is prohibited from accepting any further compensated employment that would require the Board’s approval. See A.O. 2010-58 (opining that a Providence City Council member-elect was not prohibited from continuing to provide legal representation to the Providence Water Supply Board (“PSWB”) in a pending litigation matter because it constituted employment held at the time of his election; however, the petitioner was prohibited from seeking or accepting any new representation of the PSWB or any other Providence agency while he served on the City Council and for one (1) year thereafter); A.O. 2007-3 (opining that a Charlestown Town Council member could retain his part-time employment as a custodian at the Charlestown Senior Center because it was municipal employment held prior to his election to the Town Council; however, he was prohibited from seeking or accepting another position at the Senior Center, or with any other municipal agency in the Town, while serving on the Town Council and for a period of one (1) year thereafter). Accordingly, it is the opinion of the Ethics Commission that the Petitioner’s continued employment as the Director of Plan Review would not run afoul of the Code of Ethics. However, the Petitioner must recuse from participation in Board matters that would impact his employment as the Director of Plan Review or seek further guidance from the Commission. See R.I. Gen. Laws § 36-14-5(a) and (d). Notice of recusal should be filed in accordance with 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 Commission Regulation 36-14-5006 Commission Regulation 36-14-5014 Related Advisory Opinions: A.O. 2010-58 A.O. 2007-3 A.O. 2002-21 Keywords: Dual Public Roles Revolving Door