Advisory Opinion No. 2020-13 Rhode Island Ethics Commission Advisory Opinion No. 2020-13 Approved: March 3, 2020 Re: Judith Branch QUESTION PRESENTED: The Petitioner, the Director of the Department of Human Services for the Town of Glocester, a municipal elected position, who recently became a member of the Housing Authority for the Town of Glocester, a municipal appointed position, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places upon her in her new role as a member of the Housing Authority. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Director of the Department of Human Services for the Town of Glocester, a municipal elected position, who recently became a member of the Housing Authority for the Town of Glocester, a municipal appointed position, is prohibited by the Code of Ethics from participating in any matters as a member of the Housing Authority that are likely to result in a financial impact upon herself, a member of her family, her private employer, and/or her business associates. The Petitioner serves as the Director of the Department of Human Services (“Human Services”) for the Town of Glocester (“Town”). She states that she was originally elected to that position in November of 2009 and has served continuously since. Her present term ends in December of 2020. The Petitioner explains that the Director of Human Services is a part-time position, and identifies her duties in that role as follows: operating the Town’s food pantry with the help of volunteers; providing transportation for elderly and/or disabled Town residents to medical appointments, the grocery store, the bank, and the pharmacy; and, on occasion, referring Town residents in need of temporary shelter to Rhode Island Housing. The Petitioner states that, in January of 2020, she was appointed by the Glocester Town Council (“Town Council”) to serve on the Town Housing Authority (“Housing Authority”). She explains that since her appointment to the Housing Authority there has been only one meeting which she attended and at which little was discussed. The Petitioner states that she is not yet familiar with all of her responsibilities as a member of the Housing Authority but that the Housing Authority oversees the work of a manager hired by the Housing Authority to process the applications of Town residents who are fifty-five years of age and older, and/or disabled, for housing in approximately 62 federally funded apartments. The Petitioner represents that she receives no stipend or other remuneration for her service on the Housing Authority. The Petitioner states that her appointment to the Housing Authority did not require approval by the Department of Human Services, and that there is no interaction between those two municipal agencies. She further states that she can think of no way in which her appointment to the Housing Authority might impair her independence of judgment with respect to her duties as the Director of Human Services, and vice versa. The Petitioner represents that her duties as a member of the Housing Authority will not require or induce her to disclose confidential information acquired by her in the course of and by reason of her duties as the Director of Human Services, and vice versa. It is in the context of these facts that the Petitioner requests guidance from the Ethics Commission regarding what limitations, if any, the Code of Ethics places upon her in her new role as a member of the Housing Authority. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest that is in substantial conflict with the proper discharge of her duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A public official will have an interest that is in substantial conflict with the proper discharge of her duties or employment in the public interest 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 the official herself, her family member, her business associate, her employer, or any business which she represents. Section 36-14-7(a). Additionally, section 36-14-5(b) of the Code of Ethics provides that a public official may not accept other employment which would impair her independence of judgement or require her to disclose confidential information acquired in the course of her official duties. Further, section 36-14-5(d) of the Code of Ethics prohibits a public official from using her public position or confidential information received through her public position to obtain financial gain, other than that provided by law, for herself, her family member, her business associate or her employer. 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 Ethics Commission has consistently opined that neither a municipality nor its entities are “businesses” as that term is used in the Code of Ethics. See A.O. 2018-3 (opining that the Town of Johnston is not a “business” as that term is used in the Code of Ethics); A.O. 2015-14 (opining that a member of the Bristol Warren Regional School Committee (“School Committee”), who was also an alternate member of the Bristol Juvenile Hearing Board (“Hearing Board”), was not prohibited by the Code of Ethics from simultaneously serving in both positions, given that neither the School Committee nor the Hearing Board was considered to be a “business” as that term is defined in the Code of Ethics, and that the “business associate” prohibitions that would otherwise have constrained the petitioner while carrying out her public duties did not apply with respect to those two entities). Here, the Town of Glocester is not a business. Likewise, neither the Department of Human Services nor the Housing Authority are businesses, and the Petitioner is not a business associate of either the Department of Human Services or the Housing Authority. Accordingly, the Code of Ethics does not prohibit the Petitioner from participating in matters, while serving in either position, in which it is reasonably foreseeable that her official activity could directly financially impact either the Department of Human Services or the Housing Authority. See A.O. 2007-24 (opining, inter alia, that the Chair of the Cranston School Committee, who was also a member of the Board of Directors of the New England Laborers’/Cranston Public Schools Construction Career Academy, was not required to recuse from participating and voting on School Committee matters involving the Construction Academy because as a charter school it was a public school and, therefore, was not considered to be a “business” under the Code of Ethics). However, the Code of Ethics does prohibit the Petitioner from participating in matters in which it is reasonably foreseeable that there will be a direct financial impact upon herself, her family members, her private employer, and/or her business associates. In such circumstances, the Petitioner must recuse from participation and complete a statement of conflict of interest consistent with section 36-14-6. The Petitioner is advised that this advisory opinion provides only general guidance given the broad nature of her request. As more specific and discrete issues arise, the Petitioner is encouraged to seek additional guidance from the Ethics Commission. 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) § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2018-3 A.O. 2015-14 A.O. 2007-24 Keywords: Business Business Associate Conflict of Interest