Advisory Opinion No. 2019-39 Rhode Island Ethics Commission Advisory Opinion No. 2019-39 Approved: July 16, 2019 Re: Kimberlie J. Rayner-Russell QUESTION PRESENTED: The Petitioner, Assistant Harbor Master for the Town of Westerly, a municipal appointed position, requests an advisory opinion regarding whether she is prohibited by the Code of Ethics from serving in the position of Assistant Harbor Master while she and her spouse are members of the Watch Hill Yacht Club. RESPONSE: It is the opinion of the Ethics Commission that the Petitioner, Assistant Harbor Master for the Town of Westerly, a municipal appointed position, is not prohibited by the Code of Ethics from serving in the position of Assistant Harbor Master while she and her spouse are members of the Watch Hill Yacht Club. The Petitioner represents that she was appointed by the Westerly Town Manager (“Town Manager”) to the position of Assistant Harbor Master on April 1, 2019. The Petitioner explains that she has more than thirty (30) years of experience working in the marine industry and, prior to her appointment, she was a member of the Westerly Harbor Management Commission (“Harbor Commission”). The Harbor Commission was established by the Westerly Town Council in June 2003 to prepare a Harbor Management Plan (“HMP”) and a harbor ordinance in accordance with the Rhode Island Coastal Resources Management Council’s (“CRMC”) guidelines. The Petitioner further explains that the HMP and the ordinance have been completed and are being implemented.[1] The Petitioner states that her Assistant Harbor Master duties are largely administrative and include review of mooring permit applications and working with individuals who are in the process of bringing their moorings into compliance with the HMP and the associated ordinance. She further states that she is consulted by the Harbor Master and the Town Manager on matters related to the HMP and its ordinance, but the ultimate decision-making as to those matters rests with the Harbor Master and the Town Manager. The Petitioner represents that she and her spouse are general members of the Watch Hill Yacht Club (“Yacht Club”) and are not, have never been, and do not plan on becoming members of its Board of Directors, or holding any other leadership position with the Yacht Club. The Petitioner explains that the Yacht Club has reached the maximum number of moorings allocated to it under the HMP’s guidelines and is not allowed to apply for more. She represents that there are Yacht Club members who have moorings, and that it is possible that other Yacht Club members could apply for moorings. The Petitioner explains that the mooring permit application process ordinarily begins with an online application that is received and reviewed by the Petitioner for completeness and consistency with the HMP before placing the name of the applicant on a waiting list. The Petitioner notes that the Town has a waiting list for mooring permits because the demand for available mooring permits is greater than the number of available mooring locations, adding that any future applicants would be placed on the waiting list. When a mooring does become available, the Petitioner reviews the waiting list to determine who the next applicant who may qualify for the available mooring is, based on the specifications of the mooring relative to the size and weight of the boat for which it could be utilized. The Petitioner notes that ultimately it is the Harbor Master who decides to whom the available mooring will be awarded, based on criteria established by the HMP and the order of the waiting list. Given this set of facts the Petitioner seeks the guidance of the Ethics Commission regarding whether she is prohibited by the Code of Ethics from serving in the position of Assistant Harbor Master while she and her spouse are members of the Yacht Club. Under the Code of Ethics, a public official may not participate in any matter in which she 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 she, any person within her family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Additionally, the Code prohibits a public official from using her public office or confidential information received through her public office to obtain financial gain for herself, her family, her business associate, or any business by which she is employed or which she represents. Section 36-14-5(d). 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 Commission has previously stated that persons are “business associates” of the entities for which they serve as either officers, members of the Board of Directors, or in some other leadership position that permits them to affect the financial objectives of the organization. See, e.g., 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 Tiverton Zoning Ordinance that was requested by the TYC). In contrast, however, the Commission has generally held that mere membership in an organization, as opposed to the holding of a position as a director, officer, or other position of leadership, does not create a business association requiring recusal. See A.O. 2015-2 (opining that a Barrington Town Council member was not a business associate of the East Bay Rowing Club (“EBRC”), notwithstanding that he had paid a fee for his dependent son to be on the EBRC crew team each season, based upon his representations that he had no financial interest in the EBRC and would not be financially impacted by any modifications to the EBRC’s contract with the Town Council); A.O. 2013-26 (opining that a Newport City Council member was not prohibited from participating in City Council matters involving the Newport Yacht Club (“Yacht Club”), notwithstanding that her husband was an individual member of the Yacht Club and paid annual dues to the Yacht Club, but was not an officer or member of the Yacht Club’s Board of Directors); A.O. 2009-39 (opining that the Barrington Town Planner’s general membership in the Bayside Family YMCA (“YMCA”), where he did not serve in any leadership position, did not constitute a business associate relationship with the YMCA and, thus, he was permitted to participate in Barrington’s review of the YMCA development proposal and plans). Here, as neither the Petitioner nor her spouse is an officer or on the Board of Directors of the Yacht Club, or in any type of leadership position that would allow either of them to affect the financial objectives of the Yacht Club, and the Petitioner and her spouse are merely ordinary members with no greater power or privilege than any other ordinary members, neither the Petitioner nor her spouse is a “business associate” of the Yacht Club. Thus, the Petitioner need not recuse from taking official actions as the Assistant Harbor Master relative to matters involving or financially impacting the Yacht Club. Accordingly, based on the Petitioner’s representations, the pertinent provisions of the Code of Ethics, and review of prior advisory opinions, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code from serving in the position of Assistant Harbor Master while she and her spouse are members of the Yacht Club. Further, the Petitioner need not recuse from taking official actions as the Assistant Harbor Master relative to matters involving or financially impacting the Yacht Club. However, the Petitioner is advised to seek further guidance from the Ethics Commission as to whether any particular matter creates a conflict of interest that might require her recusal or if her or her spouse’s membership status with the Yacht Club changes. 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) § 36-14-7(a) Related Advisory Opinions: A.O. 2016-29 A.O. 2015-2 A.O. 2013-26 A.O. 2012-28 A.O. 2011-47 A.O. 2009-39 A.O. 2009-1 Keywords: Membership Business Associate [1] The Petitioner states that, because the Harbor Commission has completed its task, it has been disbanded.