Advisory Opinion No. 2020-22

Rhode Island Ethics Commission

Advisory Opinion No. 2020-22

Approved: April 28, 2020

QUESTION PRESENTED:

The Petitioner, the Town Moderator for the Town of Jamestown, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from performing his Town Moderator duties at the Town’s annual financial meeting, at which time the Jamestown Philomenian Library Board of Trustees is expected to seek bond funding to supplement its Capital Campaign, given that the Petitioner currently simultaneously serves as Honorary Co-Chairman of the Capital Campaign.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Town Moderator for the Town of Jamestown, a municipal elected position, is not prohibited by the Code of Ethics from performing his Town Moderator duties at the Town’s annual financial meeting, at which time the Jamestown Philomenian Library Board of Trustees is expected to seek bond funding to supplement its Capital Campaign, notwithstanding the fact that the Petitioner currently simultaneously serves as Honorary Co-Chairman of the Capital Campaign.

The Petitioner was first elected to a two-year term as Town Moderator (“Moderator”) for the Town of Jamestown (“Town”) in November of 2012 and has served continuously since. He represents that his duties at the Town’s annual financial meeting each June include causing the votes of those electors present to be taken on motions that have been made and seconded. The Petitioner explains that the first recourse is a voice vote, which is usually decisive. He further explains that, in the event of a tie, or if at least ten percent of the voters request it, there will be a paper ballot. The Petitioner states that he is paid $120 for each Town meeting at which he serves as Moderator, adding that the duties of the Town Moderator do not extend outside or beyond the annual financial meeting. The Petitioner represents that the Town Moderator does not have any fiscal or jurisdictional control over the individual departments, boards, or offices whose budgets appear on the agenda for any particular meeting, nor does he propose or develop the separate items that appear on the agenda for a particular meeting. He states that, as Moderator, he has no authority over Town finances, or any other municipal matter, emphasizing that his role is one of supervisor to ensure a fair and open meeting of voters in accordance with the law.

The Petitioner states that, independent of his role as Moderator, he serves as an Honorary Co-Chairman of the Jamestown Philomenian Library’s Capital Campaign (“Capital Campaign”), having been designated as such by the Library’s Board of Trustees. The Library is a municipal agency whose Trustees are appointed by the Town Council. The Petitioner represents that the Capital Campaign, which is being conducted with the support of the Town Council and the Town Administrator, is expected to last one year, though it could extend beyond one year. He identifies the goal of the Capital Campaign as raising $600,000 to expand and refurbish the Library (“Library project”). The Petitioner describes his role as Honorary Co-Chairman, for which he is not compensated, as one of advisor to the Library’s Board of Trustees. He adds that he has sent letters to twenty or thirty potential major donors who may be in a position to support the Capital Campaign in a significant way. The Petitioner states that the Trustees have determined that it will be necessary for the Town to borrow funds for the Library project, by way of a municipal bond, as a supplement to the funds raised to date through the Capital Campaign. He explains that such a bond will require approval by the voters at this year’s annual financial town meeting in June. It is in the context of these facts that the Petitioner seeks guidance from the Ethics Commission regarding whether he must recuse from his duties as Moderator during the portion of this year’s annual financial meeting at which votes are taken that relate specifically to the Library project.

Under the Code of Ethics, a public official may not participate in any matter in which he has an interest 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 public official will have an interest that is in substantial conflict with the proper discharge of his duties or employment in the public interest if he has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his official activity, to the official himself, his family member, his business associate, his employer, or any business which he 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 his independence of judgement or require him to disclose confidential information acquired in the course of his official duties. Further, section 36-14-5(d) of the Code of Ethics prohibits a public official from using his public position or confidential information received through his public position to obtain financial gain, other than that provided by law, for himself, his family member, his business associate or his 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 component agencies 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 a business associate of either the School Committee or the Hearing Board, because neither of those public entities was considered a “business” as that term is defined in the Code of Ethics).

Here, the Town of Jamestown is not a business. Likewise, the Library, a public entity, is not a business, nor is its Board of Trustees or the Capital Campaign Committee. The Petitioner, therefore, is not a business associate of the Library, the Board of Trustees, or the Capital Campaign Committee. Accordingly, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from performing his Moderator duties at this year’s annual financial Town meeting. 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 Petitioner is advised that he is prohibited by the Code of Ethics from participating in matters in which it is reasonably foreseeable that there will be a direct financial impact upon himself, his family members, his employer, and/or his 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.

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