Advisory Opinion No. 2018-40 Rhode Island Ethics Commission Advisory Opinion No. 2018-40 Approved: June 19, 2018 Re: Pamela Sherrill, AICP QUESTION PRESENTED: The Petitioner, a member of the Rhode Island Scenic Roadways Board, a state appointed position, who also serves as the Executive Director of the East Providence Waterfront Special Development District Commission, a quasi-public state agency, requests an advisory opinion regarding whether the Code of Ethics prohibits her from participating in the Scenic Roadways Board’s discussions and voting to approve aesthetic developments along Veterans Memorial Parkway, given that the East Providence Waterfront Special Development District Commission is responsible for approving structural developments in areas that abut Veterans Memorial Parkway. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Rhode Island Scenic Roadways Board, a state appointed position, who also serves as the Executive Director of the East Providence Waterfront Special Development District Commission, a quasi-public state agency, is not prohibited by the Code of Ethics from participating in the Scenic Roadways Board’s discussions and voting to approve aesthetic development along Veterans Memorial Parkway, notwithstanding that the East Providence Waterfront Special Development District Commission is responsible for approving structural developments in areas that abut Veterans Memorial Parkway. The Petitioner is a member of the Rhode Island Scenic Roadways Board (“SRB”), having been appointed to that position in June 2017 by the Governor. The SRB is a public entity created by statute,[1] and its purpose is to identify, designate, promote, protect, and preserve scenic roadways throughout Rhode Island.[2] The Petitioner explains that any alterations within a scenic right-of-way must receive the approval of the SRB and the Rhode Island Department of Transportation (“DOT”). Additionally, the Petitioner serves as the Executive Director of the East Providence Waterfront Special Development District Commission (“Waterfront Commission”), a quasi-public state agency.[3] She informs that the Waterfront Commission is responsible for approving structural developments in several sub-districts which abut the Veterans Memorial Parkway, a state-designated Scenic Roadway.[4] The Petitioner states that when it reviews development applications, the Waterfront Commission considers the impact that such developments would have on traffic congestion on the scenic roadway. She represents that she is a part-time contract employee and her duties include overseeing the administration, programs, and strategic plans of the Waterfront Commission. The Petitioner informs that the SRB’s May 3, 2018 meeting agenda included an application submitted by University Orthopedics for a new medical office building abutting Veterans Memorial Parkway. She represents that she recused from discussion and vote pending guidance from the Ethics Commission, but seeks an advisory opinion as to whether she must continue to recuse from future discussions and votes regarding development projects along Veterans Memorial Parkway. Under the Code of Ethics, the Petitioner 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 and employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). The Petitioner has 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 her official activity, to herself, a family member, a business associate, an employer, or any business which she represents. Section 36-14-7(a). The Code further provides that the Petitioner shall not engage in any employment that would impair her independence of judgment as to her public duties. Section § 36-14-5(b). She is also prohibited from using her public position or confidential information received through her position to obtain financial gain, other than that provided by law. Section 36-14-5(d). A business is defined as “a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, trust or any other entity recognized in law through which business for profit or not for profit is conducted.” Section 36-14-2(2). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7). 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 neither the SRB nor the Waterfront Commission is considered to be a “business” or a “business associate” under the Code of Ethics. See Advisory Opinion 2015-24 (the State is not considered to be a “business” under the Code of Ethics); A.O. 2008-50 (opining that the Rhode Island State Veterinarian, an employee of the Division of Agriculture, is not inherently prohibited by the Code from serving as an adjunct professor at URI, notwithstanding the fact that the two roles may intersect, as neither the Division of Agriculture nor URI are “businesses” as defined by the Code and thus the petitioner’s relationships with those entities are not “business associations”); A.O. 2003-31 (opining that the Executive Director of the Rhode Island Governor’s Commission on the Deaf and Hard of Hearing was not prohibited from serving on the Board of Trustees of the Rhode Island School for the Deaf since, even if his official action at one of these public bodies did financially impact the other, such action is not prohibited under the Code of Ethics because the Code of Ethics does not consider any relationship between a public official and a public body to be that of “business associates”); and A.O. 2002-55 (the term “business” as used in the Code of Ethics does not include public entities such as the Town of Richmond). Accordingly, the Petitioner’s relationships with the SRB and the Waterfront Commission do not constitute “business associations” under the Code of Ethics. Therefore, absent any other relevant fact that would implicate provisions of the Code of Ethics, the Petitioner is not prohibited from participating in the SRB’s discussions and voting to approve applications for development projects in areas abutting Veterans Memorial Parkway, notwithstanding the fact that Waterfront Commission, by which the Petitioner is employed, is responsible for approving structural developments in areas that abut Veterans Memorial Parkway. 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(2), (3), & (7) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-7(a) Related Advisory Opinions: A.O. 2015-24 A.O. 2008-50 A.O. 2003-31 A.O. 2002-55 Keywords: Business Associate Dual Public Roles