Advisory Opinion No. 2019-31 Rhode Island Ethics Commission Advisory Opinion No. 2019-31 Approved: May 21, 2019 Re: Brian J. McGuirk QUESTION PRESENTED: The Petitioner, an Administrator, Operations Management with the Department of Administration, Division of Information Technology, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from accepting an appointment to the Board of Directors for Greenwood Credit Union, given his assignment as the Information Technology Manager at the Department of Business Regulation, which regulates the Greenwood Credit Union. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, an Administrator, Operations Management with the Department of Administration, Division of Information Technology, a state employee position, is not prohibited by the Code of Ethics from accepting an appointment to the Board of Directors for Greenwood Credit Union, notwithstanding his assignment as the Information Technology Manager at the Department of Business Regulation, which regulates the Greenwood Credit Union. The Petitioner is an Administrator, Operations Management with the Department of Administration (“DOA”), Division of Information Technology. The Petitioner explains that he was recently assigned to be an Information Technology Manager at the Department of Business Regulation (“DBR”) and that his normal working hours are Monday through Friday, 8:30 a.m. to 4:00 p.m. He states that his duties include general technology management and support. The Petitioner represents that in his private capacity he has been asked to join the Board of Directors (“Board”) for the Greenwood Credit Union (“Credit Union”), a State-chartered credit union that is regulated by the DBR. The Petitioner states that he would receive a stipend for his services on the Board, that his duties would include general strategic guidance, oversight and fiduciary duties to the institution, and that he would perform all such duties on his own time. The Petitioner represents that he would not represent the Board or the Credit Union before the DOA or the DBR and that neither the Board nor the Credit Union would have to appear before the Petitioner because, at most, his duties relative to the DBR’s Banking Division include supporting its technology infrastructure, including personal computers, email accounts, maintenance of some collaboration software, and the like. The Petitioner explains that his interactions with the Banking Division are considerably less than with other divisions because the Banking Division uses specialized software over which he has no control as the software is developed and maintained by a national regulatory agency. Based on this set of facts, the Petitioner seeks the guidance of Ethics Commission regarding whether his acceptance of a position on the Board would present a conflict of interest under the Code of Ethics, given his assignment as an Information Technology Manager to the DBR. Under the Code of Ethics, a public official or employee may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A public official or employee will have an interest in substantial conflict with his official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his official activity, to himself, a family member, a business associate, or any business by which he is employed or which he represents. Section 36-14-7(a). The Code of Ethics also provides that a public official or employee may not use his office to obtain financial gain for himself, a family member, a business associate, an employer, or any business that he represents. Section 36-14-5(d). A public official or employee may not represent himself, or any other person, or act as an expert witness before any state or municipal agency of which he is a member or by which he is employed. Section 36-14-5(e)(1)-(3). Furthermore, a public official or employee must recuse from participation when his business associate appears or presents evidence or arguments before his state agency. Commission Regulation 520-RICR-00-00-1.2.1(A)(2) Additional Circumstances Warranting Recusal (36-14-5002). A “business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective.” Section 36-14-2(3) & (7). The Code of Ethics does not contain any blanket prohibition against public officials or employees serving in leadership positions or on boards of private organizations; rather, such simultaneous public and private service requires the public officials or employees to remain vigilant in identifying and managing any conflicts of interest that may arise between their public and private duties. See A.O. 2015-45 (opining that a senior compliance officer at the Rhode Island Commission for Human Rights was not prohibited by the Code of Ethics from serving as a member of the Board of Directors of the Maplehill Mobile Home Park Residents Association). T he Ethics Commission has consistently concluded that public officials or employees are “business associates” of entities for which they serve either as members of the Board of Directors or in other leadership positions that permit them to affect the financial objectives of the organization. See, e.g. , A.O. 2014-14 (opining that the Director of the RI DEM, who was also a Director of the RI Boy Scouts, was a business associate of the Boy Scouts and was, thus, required to recuse from participating in any DEM decisions that would financially impact the Boy Scouts, as well as from any matters in which a Boy Scout representative appeared to represent the organization’s interests); A.O. 2012-28 (opining that a Tiverton Planning Board member, who was also a member of the Board of Directors of the Tiverton Yacht Club (“TYC”), was a business associate of the TYC and, therefore, was required to recuse from participating in the Planning Board’s consideration of a proposed amendment to the Zoning Ordinance that was requested by the TYC). Here, the Petitioner would become a “business associate” of the Credit Union were he to join its Board of Directors. Therefore, the Code of Ethics would prohibit the Petitioner from sharing any confidential information with the Credit Union, or from representing the organization’s interests before his public agency. Furthermore, the Petitioner would be required to recuse from participating in matters involving the Credit Union, as well as from any matters in which a Credit Union representative appears or presents evidence or arguments. See Commission Regulation 520-RICR-00-00-1.2.1(A)(2). For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from serving as a member of the Board of Directors for the Greenwood Credit Union, provided that he remains vigilant in identifying and managing any conflicts of interest that may arise between his public and private duties. The Petitioner is advised to seek further guidance from the Ethics Commission when faced with a specific situation not covered by this general advisory opinion. 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(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-5(e) § 36-14-7(a) 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002) Related Advisory Opinions: A.O. 2015-45 A.O. 2014-14 A.O. 2012-28 Keywords: Business Associate Recusal