Advisory Opinion No. 2018-3

Rhode Island Ethics Commission

Advisory Opinion No. 2018-3

Approved: January 9, 2018

Re:  Joseph M. Polisena

QUESTION PRESENTED:

The Petitioner, the Mayor of the Town of Johnston, a municipal elected position, who serves on the Executive Board of Directors of the Rhode Island League of Cities and Towns, a private nonprofit association, requests an advisory opinion regarding whether he may participate in a vote of the Rhode Island League of Cities and Towns to take a position that would be financially advantageous to the Town of Johnston.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Mayor of the Town of Johnston, a municipal elected position, who serves on the Executive Board of Directors of the Rhode Island League of Cities and Towns, a private nonprofit association, is not prohibited by the Code of Ethics from participating in a vote of the Rhode Island League of Cities and Towns to take a position that would be financially advantageous to the Town of Johnston.

The Petitioner is the Mayor of the Town of Johnston.  He states that in 2017 he was elected to serve on the Executive Board of Directors of the Rhode Island League of Cities and Towns (“the RILCT), described by the Petitioner as “a private, non-partisan and nonprofit association of cities and towns formed in 1968 to advocate for the interests of the thirty-nine (39) municipalities within the State of Rhode Island and to improve the effectiveness of local government.”  The Petitioner represents that the RILCT takes positions and advocates on behalf of its members before the General Assembly, the executive branch and its public and quasi-public agencies, among others.  He states that his position is voluntary and he receives no compensation for his service on the Executive Board of Directors.

The Petitioner notes that one of the RILCT’s current priorities is to address a proposed increase in municipal “tipping fees” charged to municipalities who deposit solid waste at the state’s Central Landfill in the Town of Johnston, owned and operated by the Rhode Island Resource Recovery Corporation (“the RIRRC”), a quasi-public state agency.  The Petitioner notes that the Town of Johnston, as the host community of the Central Landfill, receives substantial benefits in the form of abated tipping fees and annual payments from the RIRRC, including a percentage of RIRRC’s gross revenue.  Because of its share in the RIRRC’s revenue, the Town of Johnston stands to financially benefit from any increase in tipping fees charged to other municipalities.  For this reason, the Petitioner seeks guidance from the Ethics Commission as to whether the Code of Ethics prohibits his participation, while serving as a member of the RILCT’s Executive Board of Directors, in discussions and voting that may lead the RILCT to advocate before the legislature, the executive branch and the RIRRC for increased tipping fees.

Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest.  R.I. Gen. Laws § 36-14-5(a).  A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, a business associate or any business by which the person is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity.  Section 36-14-7(a).  The Code also prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any business by which he is employed or which he represents.  Section 36-14-5(d). 

In the instant question presented by the Petitioner, the above prohibitions are not implicated because the Petitioner’s activities on the RILCT does not constitute “official activity” or use of his public office.  The Petitioner represents that the RILCT is a private, nonprofit association.  The Code of Ethics does not regulate the activities of such non-governmental organizations or its directors. 

Furthermore, the Code’s prohibition on using one’s public office to financially benefit “any business by which the person is employed” does not apply here because the Town of Johnston is not a “business” as that term is used in the Code of Ethics.  See A.O. 2002-55 (the Town of Richmond is not a business as that term is used in the Code of Ethics).

For these reasons, the Petitioner is not prohibited by the Code of Ethics from participating in a vote of the RILCT regarding increased municipal tipping fees that would be financially advantageous to the Town of Johnston.

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)

§ 36-14-7(a)

Related Advisory Opinions:

A.O. 2002-55

Keywords: 

Business