Advisory Opinion No. 2019-70 Rhode Island Ethics Commission Advisory Opinion No. 2019-70 Approved: December 10, 2019 Re: Karen D. Pinch QUESTION PRESENTED: The Petitioner, the Town Administrator for the Town of Richmond, a municipal appointed position, requests an advisory opinion regarding whether the Town of Richmond is prohibited by the Code of Ethics from accepting a financial contribution from the Beaver River Valley Community Association to be used solely for funding, or partially funding, the videotaping of Planning Board and Zoning Board of Review meetings held in the Town of Richmond. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Town of Richmond is not prohibited by the Code of Ethics from accepting a financial contribution from the Beaver River Valley Community Association to be used solely for funding, or partially funding, the videotaping of Planning Board and Zoning Board of Review meetings held in the Town of Richmond, given that the contribution will not go to any individual person subject to the Code of Ethics, but will instead be used to promote transparency within the municipality for the benefit of all residents. The Petitioner is the Town Administrator for the Town of Richmond (“Town”), having been appointed to that position by the Richmond Town Council (“Town Council”). She states that, in her public capacity, she is responsible for running the day-to-day operations of the Town, including guiding and advising the Town Council on all important matters. The Petitioner represents that, presently, all Town Council meetings are videotaped, but Town Planning Board (“Planning Board”) and Zoning Board of Review (“Zoning Board”) meetings are not. She explains that, during the Town Council meeting on November 5, 2019, one of the members of the Town Council suggested that, to better promote transparency within local government, all Planning and Zoning Board meetings should also be videotaped. The Petitioner states that, eventually, funding for the videotaping of all Town Council, Planning Board, and Zoning Board meetings is expected to be budgeted but, in the meantime, the funding of the costs of videotaping Planning and Zoning Board meetings presents an issue. The Petitioner represents that the Town presently pays a private videographer $175 per meeting to videotape Town Council meetings. She further represents that there are additional costs associated with posting the videos to the Town’s website, which the Town presently funds. The Petitioner states that, following the Town Council meeting on November 5, 2019, she was approached by a representative of the Beaver River Valley Community Association (“BRVCA”) who offered, on behalf of the BRVCA, to donate $2,400 to help pay for the videotaping of Planning and Zoning Board meetings. The Petitioner describes the BRVCA as a local group of private citizens who formed in 2018 to fight solar energy projects in residential zones. The Petitioner explains that, although a Town ordinance has since been revised so that solar is not allowed in residential zones, there remain other projects against which the BRVCA advocates. She states that members of the BRVCA have appeared before the Planning Board in the past and that it is reasonably foreseeable that they will appear before the Planning Board in the future. She adds that it is possible that members of the BRVCA have also appeared before the Zoning Board and might again do so in the future. The cost of videotaping the Planning and Zoning Board meetings for the remainder of the present fiscal year was originally calculated by the Petitioner to be approximately $2,450, exclusive of the costs associated with posting the videos to the Town’s website. Upon further contemplation, the Petitioner determined that the proposed donation from the BRVCA would only cover the remaining Planning Board meetings for the present fiscal year, meaning that the Town would be tasked with funding not only the posting of the videos of the Planning Board meetings, but also all costs associated with videotaping and posting videos of the Zoning Board meetings. Alternatively, the Petitioner is considering the purchase of a camera and any additional equipment necessary to allow the Town to eventually videotape the meetings on its own with the goal of saving money on paying a professional videographer. It is unknown at this time whether the BRVCA is willing to donate more than the $2,400 originally offered, or whether the purchase of a camera and equipment will be less than that amount. Regardless, the Petitioner represents that any money donated by the BRVCA would only be put toward the cost of videotaping Planning Board and/or Zoning Board meetings and reiterates that the costs of videotaping all Town Council, Planning Board, and Zoning Board meetings is expected to eventually be funded by the Town budget. It is in the context of these facts that the Petitioner seeks guidance from the Ethics Commission as to whether the Town is prohibited by the Code of Ethics from accepting a financial contribution from the BRVCA. Under the Code of Ethics, a public official may not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction which is in substantial conflict with the proper discharge of her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the official has reason to believe or expect that she, any person within her family, her business associate, or any business by which she is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Further, the official may not use her position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself, any person within her family, her business associate, or any business by which she is employed or which she represents. Section 36-14-5(d). Additionally, Commission Regulation 520-RICR-00-00-1.4.2 Gifts (36-14-5009) (“Regulation 1.4.2”) prohibits public officials and employees from accepting or receiving gifts of cash, or any goods or services valued at more than twenty-five dollars ($25), from a single interested person. An “interested person” is defined in the Code of Ethics as a person or a representative of a person or business that has a direct financial interest in a decision that the person subject to the Code of Ethics is authorized to make, or to participate in making, as part of his or her official duties. Regulation 1.4.2(C). A “single interested person” shall include all employees or representatives of an individual, business, organization or entity. Regulation 1.4.2(B)(1). The prohibitions in Regulation 1.4.2 do not apply if the gift or other thing of value is services to assist an official or employee in the performance of official duties and responsibilities, including but not limited to providing advice, consultation, information, and communication in connection with legislation, and services to constituents. Regulation 1.4.2 (B)(2)(b). In Advisory Opinion 2001-12, the Ethics Commission opined under analogous circumstances that the Code of Ethics did not prohibit the Town of Johnston and/or its elected officials acting on behalf of the Town from accepting the donation of a dais from the Rhode Island Resource Recovery Agency, or from accepting the donation of two boats for use by the Town’s Fire Department from a business located within the Town and, therefore, subject to the Town’s rules, regulations and ordinances. While both prospective donors were “interested persons” as that term is defined in the Code of Ethics, both donations were earmarked for the Town of Johnston, rather than for the personal benefit of any particular official or officials. Further, there was no evidence to suggest that the gifts/donations were intended to impermissibly influence any decisions by the Town. See also A.O. 99-17 (opining that the Code of Ethics did not prohibit the Rhode Island Building Officials Association (“RIBOA”) from accepting the donation of space at a home show from the Rhode Island Builders Association (“RIBA”), and stating that, although the members of the RIBOA were public employees who had decision-making authority with regard to the members of the RIBA, the donation of space was provided to the RIBOA, rather than to individual officials). Here, even assuming that the BRVCA and its members are interested persons as to the Planning and Zoning Boards, the Petitioner affirmatively states that neither she nor any members of the Planning and/or Zoning Boards would receive any personal financial benefit whatsoever from the Town’s acceptance of the donation. Furthermore, the proposed donation from the BRVCA would specifically be used solely for funding, or partially funding, the videotaping of Planning and/or Zoning Board meetings. Therefore, there is nothing to implicate the prohibitions found at R.I. Gen. Laws § 36-14-5(a) or (d). Accordingly, it is the opinion of the Ethics Commission that, barring any other set of facts that would implicate prohibitions found in the Code of Ethics, the Town of Richmond is not prohibited from accepting a financial contribution from the BRVCA to be used solely for funding, or partially funding, the videotaping of Planning and Zoning Board meetings in the Town of Richmond. 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) 520-RICR-00-00-1.4.2 Gifts (36-14-5009) Related Advisory Opinions: A.O. 2001-12 A.O. 99-17 Keywords: Gifts