Advisory Opinion No. 2020-17 Rhode Island Ethics Commission Advisory Opinion No. 2020-17 Approved: March 3, 2020 Re: Robert A. Dexter QUESTION PRESENTED: The Petitioner, a member of the Scituate Capital Committee, a municipal appointed position, who in his private capacity is employed as a regional consultant for a pavement and surface restoration company, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places upon his ability to bid on service and/or product contracts in the Town of Scituate. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from bidding on service and/or product contracts in the Town of Scituate because decision-making authority relative to such contracts lies with the Scituate Town Council and not with the Scituate Capital Committee. The Petitioner states that he was appointed by the Scituate Town Council (“Town Council”) to the Scituate Capital Committee (“SCC”) in the fall of 2019.[1] He describes the SCC as a six member ad hoc committee created approximately four months ago for purposes of identifying the anticipated capital needs of various departments in the Town of Scituate (“Town”) during the next five to ten years and having an estimated cost of $25,000 or more and then relaying those capital needs to the Town Council for consideration and decision-making. He identifies the various departments as the Town, Police Department, Department of Public Works, Recreation/Sports Organizations, and Fire and Rescue, and explains that the capital needs of those departments are ascertained by the SCC members during investigations that include discussions with department heads. The Petitioner states that the SCC’s duties do not extend beyond those described by him above. The Petitioner represents that the SCC serves the Town Council strictly in an advisory capacity. He further represents that the members of the SCC do not receive any stipend or other remuneration for their public service and that his present term, and that of each of the other five SCC members, will expire in December of 2020. The Petitioner states that the SCC will submit written reports to the Town Council summarizing the SCC’s findings. He further states that the Town Council is not required to act on the findings of the SCC, and that the SCC does not vote on the appropriation of any funds or purchases made by the Town Council. The Petitioner explains that the first report expected to be presented to the Town Council by the SCC in the near future will specify that the SCC is not a body of subject matter experts on the matters contained within the report which reflect the results of investigations and discussions with department heads and that, in the opinion of the SCC, the Town Council should consult with subject matter experts when making decisions based on the opinions expressed by the SCC. The Petitioner represents that, in his private capacity, he is employed as a regional consultant for Felix A. Marino Co., Inc. (“Marino”), a pavement and surface restoration company located in Peabody, Massachusetts. He explains that, among other things, Marino provides penetrating fog seal for roads, infrared pavement patching, and Endurablend surface treatment for asphalt and concrete. The Petitioner further explains that Marino pays him a salary, plus commission. He adds that he does not believe that Marino has contracted with the Town in the past. It is in the context of these facts that the Petitioner seeks guidance from the Ethics Commission regarding what limitations, if any, the Code of Ethics places upon his ability to bid on service and/or product contracts in the Town in his private capacity as an employee of Marino. The Code of Ethics identifies the following persons as subject to its provisions: state and municipal elected officials; state and municipal appointed officials; and employees of state and local government, of boards, commissions, and agencies. R.I. Gen. Laws § 36-14-4. Under the Code of Ethics, a “state or municipal appointed official” includes any officer or member of a state or municipal agency who is appointed by or through the governing body or highest official of state or municipal government. Section 36-14-2(9); Commission Regulation 520-RICR-00-00-1.1.3(B) Additional Definitions (36-14-2002) (“Commission Regulation 1.1.3”). The Code of Ethics defines a “municipal agency” as “any department, division, agency, commission, board, office, bureau, authority, quasi-public authority . . . within Rhode Island, other than a state agency and any other agency that is in any branch of municipal government and exercises governmental functions other than in an advisory nature.” Section 36-14-2(8)(ii); Commission Regulation 1.1.3(E).[2] Most relevant to the instant advisory opinion is the fact that both the statutory and regulatory definitions of “municipal agency” exempt advisory boards. The Ethics Commission has previously had occasion to opine that a petitioner who had been appointed by a municipal governing body to a municipal committee was not a “municipal appointed official” as that term is defined in the Code of Ethics, and thus, was not subject to the statutory and regulatory provisions of the Code of Ethics. In Advisory Opinion 2007-48, for example, the Ethics Commission determined that the Town of Charlestown’s Charter Revision Advisory Committee to which the petitioner had been appointed by the Charlestown Town Council was not a “municipal agency” as that term is defined in the Code of Ethics because its powers were purely advisory in nature. As a result, the petitioner was not subject to the statutory and regulatory provisions of the Code of Ethics. See also A.O. 2002-58 (opining that a Tiverton Economic Development Committee (“TEDC”) member was not required to file a financial disclosure statement since the TEDC acted in a purely advisory capacity and, therefore, was not a “municipal agency” for purposes of the Code of Ethics); A.O. 2000-13 (opining that the Town of Little Compton Harbor Commission was not a “municipal agency” as that term is defined in the Code of Ethics and, therefore, the members of the Commission were not required to abide by the statutory and regulatory provisions of the Code of Ethics). Contra A.O. 2000-48 (opining that a member of the City of Warwick Harbor Management Commission (“HMC”) was required to file a financial disclosure form because, in addition to its policymaking role in making recommendations, the HMC also served as an appellate body, affecting the rights of persons aggrieved by decisions of the department of parks and recreation and harbormaster or staff, and that such actions were not “purely advisory” in nature). Here, the Petitioner represents that the SCC serves the Town Council strictly in an advisory capacity, that the Town Council is not required to act on the findings of the SCC, and that the SCC does not vote on the appropriation of any funds or purchases made by the Town Council. Additionally, the Petitioner explains that the report of findings to be presented to the Town Council by the SCC will specifically recommend that the Town Council consult with subject matter experts when making decisions based on the opinions expressed in the SCC’s report. Accordingly, given the representations of the Petitioner and the analysis of the applicable provisions of the Code of Ethics, and consistent with prior advisory opinions, it would appear, in the absence of a full investigation which is not conducted in conjunction with the issuance of an advisory opinion, that the SCC is not a municipal agency as that term is defined in the Code of Ethics because its powers are purely advisory in nature and that the Petitioner is therefore not subject to the statutory and regulatory provisions of the Code of Ethics. However, in light of any perceived appearance of impropriety associated with the Petitioner’s inquiry, the Ethics Commission will employ a conflict of interest analysis. Under the Code of Ethics, a public official may not participate in any matter in which he 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 a public official has reason to believe or expect that he, any person within his family, his business associate or his employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Here, even if additional facts ultimately warranted a determination that the Petitioner is subject to the Code of Ethics, the SCC’s function is limited to making recommendations to the Town Council upon which the Town Council is not required to act. Also, the inclusion of the SCC’s recommendation to the Town Council that the Town Council consult with subject matter experts when making decisions based on the opinions expressed by the SCC highlights the fact that the exercise of decision-making authority lies with the Town Council and not with the SCC. Accordingly, because the Town Council will have to decide whether and to what extent to accept the recommendations of the SCC, including which capital needs to fund and with whom to contract for services and/or products associated therewith, the facts as represented herein do not implicate a conflict of interest for the Petitioner under sections 36-14-5(a) and 34-14-7(a) of the Code of Ethics if he wishes to bid on service and/or product contracts in the Town in his private capacity as an employee of Marino. The Petitioner is advised however, that should any matters come before him as he is carrying out his duties as a member of the SCC that may present a conflict of interest that is not otherwise contemplated in this advisory opinion, particularly circumstances in which it is reasonably foreseeable that there will be a financial impact upon the Petitioner personally, any person within his family, his business associate, or his employer as a result of his official action, he should either request further advice from the Ethics Commission or recuse from participation consistent with section 36-14-6. 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(8) § 36-4-2(9) § 36-14-4 § 36-14-5(a) § 36-14-6 § 36-14-7(a) 520-RICR-00-00-1.1.2 Additional Definitions (36-14-2001) 520-RICR-00-00-1.1.3 Additional Definitions (36-14-2002) Related Advisory Opinions: A.O. 2007-48 A.O. 2002-58 A.O. 2000-70 A.O. 2000-48 A.O. 2000-13 Keywords: Advisory Body Conflict of Interest [1] The Petitioner states that, as a lifelong resident of the Town of Scituate, he also served on the Scituate Planning Board for close to a decade during the 1980s and 1990s; on the Scituate Town Council between 1992 and 2004; and as the Director of Public Works between 2013 and 2017. [2] Commission Regulation 520-RICR-00-00-1.1.2 Additional Definitions (36-14-2001)(I) (“Regulation 1.1.2”) states that a “municipal agency” shall include any entity that: “(a) exercises governmental functions other than in an advisory nature, and expends public funds in excess of $10,000 yearly, or; (b) those entities whose directors or other governing members are appointed by or through the governing body or highest official of state or municipal government.” The Ethics Commission has previously concluded that, to the extent that the language of Regulation 1.1.2(I) seems to conflict with the statutory definition of “municipal agency” in section 36-14-2(8)(ii), and with the more recently enacted definition in Regulation 1.1.3(E), the more recently adopted provision, Regulation 1.1.3 controls. See A.O. 2000-70.