Advisory Opinion No. 2018-20 Rhode Island Ethics Commission Advisory Opinion No. 2018-20 Approved: March 27, 2018 Re: Mary E. Bray QUESTION PRESENTED: The Petitioner, a former member of the Pawtucket City Council, a municipal elected position, who is currently employed by the Rhode Island Office of Housing and Community Development as a Housing Commission Coordinator, a state employee position, requests an advisory opinion regarding whether she may serve as a member of the Pawtucket Housing Authority’s Board of Commissioners, a municipal appointed position. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former member of the Pawtucket City Council, a municipal elected position, who is currently employed by the Rhode Island Office of Housing and Community Development as a Housing Commission Coordinator, a state employee position, may serve as a member of the Pawtucket Housing Authority’s Board of Commissioners, a municipal appointed position. The Petitioner is currently employed by the Rhode Island Office of Housing and Community Development (“the OHCD”) as a Housing Commission Coordinator. According to its website, the mission of the OHCD is “to provide opportunities for healthy and affordable housing through production, lead hazard mitigation, and the coordination of the homeless system and implementation of the State’s plan to end homelessness.”[1] The Petitioner states that her duties at the OHCD are strictly administrative, and that she has no decision-making authority or responsibility relative to affordable housing or otherwise. The Petitioner is also a former member of the Pawtucket City Council whose service thereon ended December 31, 2016. The Petitioner represents that she has been asked by the Mayor of Pawtucket to accept an appointment to the Pawtucket Housing Authority’s Board of Commissioners (“Board of Commissioners”). The Pawtucket Housing Authority owns and manages six developments consisting of 1076 units throughout the City of Pawtucket serving families, the elderly and disabled, and it provides federally subsidized housing to 1982 persons with very low to moderate incomes.[2] The Petitioner notes that, pursuant to statute, members of the Board of Commissioners receive a $1,200 annual stipend. Given her current employment at the OHCD, and her previous service on the Pawtucket City Council, the Petitioner asks whether the Code of Ethics permits her appointment and service on the Board of Commissioners. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest 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 public official will have an interest in substantial conflict with her official duties if she has a reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, a family member, a business associate, an employer, or any business which the public official represents. Section 36-14-7(a). Section 36-14-5(b) of the Code of Ethics further provides that a public official may not accept other employment which would impair her independence of judgement or require her to disclose confidential information acquired in the course of her official duties. Additionally, the Code of Ethics prohibits the Petitioner from using her public position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself or her family member, business associate or employer. Section 36-14-5(d). A somewhat similar question was asked in Advisory Opinion 2004-10. There, the Vice-Chair of the Pawtucket Housing Authority Board of Commissioners asked whether he could simultaneously serve as the Administrative Assistant to the Mayor of Pawtucket, performing ministerial and administrative duties for the Mayor. The Ethics Commission noted that the petitioner’s duties in both positions were separate and distinct, and that there was no indication that either position would impair his independence of judgment as he performed the duties of the other position. Accordingly, the Commission opined that, absent some direct financial nexus between his actions on the Board of Commissioners and his actions as the Mayor’s Administrative Assistant, no inherent conflict of interest would preclude his simultaneous service in both positions. See also A.O. 99-62 (Pawtucket Municipal and Housing Court Judge may also serve on Pawtucket Housing Authority Board of Commissioners, but must engage in a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out his duties in the public interest for purposes of the Code of Ethics). Here, the Petitioner represents that her duties at the OHCD do not include any decision-making relative to issues that involve or impact the Pawtucket Housing Authority or its Board of Commissioners. Under such circumstances, there does not appear to be any risk of an impairment of the Petitioner’s independence of judgement as to her official duties in either role. In the unlikely event that a matter comes before the Petitioner at either the OHCD or the Board of Commissioners that would involve or financially impact her, she may either recuse from participation or seek further guidance from the Ethics Commission before acting. Finally, we note that although Regulation 36-14-5014 (“Regulation 5014”) prohibits a former municipal elected official such as the Petitioner from accepting a compensated position in the same municipality during the first year after leaving elective office, the Petitioner has been off the Pawtucket City Council for longer than one year. Accordingly, Regulation 5014 is not applicable and the Petitioner may accept appointment to the Pawtucket Housing Authority notwithstanding the fact that the position includes a $1,200 annual stipend. 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(b) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5004 Related Advisory Opinions: A.O. 2004-10 A.O. 99-62 Keywords: Dual Public Roles [1] http://ohcd.ri.gov/ (last accessed March 20, 2018). [2] http://www.pawthousing.org/public-housing (last accessed March 20, 2018).