Advisory Opinion No. 2020-25 Rhode Island Ethics Commission Advisory Opinion No. 2020-25 Approved: June 2, 2020 Re: Richard Thomsen QUESTION PRESENTED: The Petitioner, a member of the Dunn’s Corners Fire District Operating Committee, a municipal elected position, who is also a volunteer firefighter on the Dunn’s Corners Fire Department, a municipal employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from simultaneously serving in both positions. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a member of the Dunn’s Corners Fire District Operating Committee, a municipal elected position, who is also a volunteer firefighter on the Dunn’s Corners Fire Department, a municipal employee position, from simultaneously serving in both positions, given that his employment as a volunteer firefighter predates his election to the Operating Committee. However, the Petitioner is required to recuse from participating in discussions and decision-making by the Operating Committee regarding matters in which it is reasonably foreseeable that there will be direct financial impact upon the Petitioner personally, any person within his family, his business associate, or his employer. The Petitioner is a member of the Dunn’s Corners Fire District Operating Committee (“Operating Committee”). He states that, after initially having been selected by the Operating Committee to fill a vacancy, he was elected in July of 2017 to serve a one-year term and re-elected in July of 2018 to serve a two-year term. He informs that he is not compensated for his service on the Operating Committee. The Petitioner represents that the Operating Committee is vested with the full charge, control, and management of the property and finances of the Dunn’s Corners Fire District (“Fire District”), which provides emergency services to the citizens of Westerly and Charlestown. He adds that the members of the Operating Committee, with input and advice from two members of the Fire Department who are not members of the Operating Committee, are tasked with hiring the Fire Chief for the Dunn’s Corners Fire Department (“Fire Department”) in light of the former Fire Chief’s resignation in April of 2020. The Petitioner explains that the Fire Chief and the Fire District Treasurer work together to create the Fire Department budget, which must be approved by the Operating Committee before being presented as part of the Fire District budget on which qualified voters of the Fire District vote as a whole at the annual meeting. The Petitioner states that he retired from a career in public service in Connecticut ten years ago and is currently a volunteer firefighter on the Fire Department, a position he has held continuously since 2015. He informs that his service as a volunteer firefighter predates his initial appointment and eventual election to the Operating Committee. The Petitioner represents that the Operating Committee is not involved in the hiring or supervision of volunteer firefighters, who report directly to the Fire Chief. He explains that volunteer firefighters are eligible for stipends, provided that they attend the requisite number of trainings and meetings, and respond to a certain number of emergency calls, each month. The Petitioner further explains that the stipends are funded from the Fire Department’s budget and distributed on a quarterly basis. He states that stipend amounts are determined by the number of emergency calls to the Fire Department each month divided by the number of eligible volunteer firefighters who respond to each emergency call. The Petitioner represents that there are approximately 30 active volunteer firefighters on the Fire Department and that, when an emergency call is dispatched, every available volunteer firefighter is expected to respond. The Petitioner further represents that the presence of a volunteer firefighter in response to an emergency call is documented on a form signed by the officer at the scene, which could be the Fire Chief, and by the volunteer firefighter. He explains that a clerk then enters the information into a matrix on the Fire Department website which calculates the amount of the stipend to be paid to the eligible volunteer firefighter. The Petitioner states that volunteer firefighters were formerly Fire Department sub-contractors but now, primarily for tax purposes, are Fire Department employees. He further states that, while he cannot recall a volunteer firefighter ever having been terminated from his or her position, any decision to terminate a volunteer firefighter would require a majority vote by all officers and senior members of the Fire Department. The Petitioner represents that he would like to seek re-election to the Operating Committee in July of 2020, or as soon thereafter as the election can be held. It is in the context of these facts that he seeks advice from the Ethics Commission regarding whether the Code of Ethics prohibits him from serving simultaneously as a member of the Operating Committee and as a volunteer firefighter in the Fire District. Under Commission Regulation 520-RICR-00-00-1.5.4 Municipal Official Revolving Door (36-14-5004) (“Regulation 1.5.4”), no municipal elected official, while holding office and for a period of one (1) year after leaving municipal office, shall seek or accept employment with any municipal agency in the municipality in which the official serves. Notably, the Code of Ethics specifically includes fire districts in both the statutory and regulatory definitions of “municipal agency.” R.I. Gen. Laws § 36-14-2(8)(ii); Regulation 1.5.4(A)(2). An exception exists if the municipal official held the employment in question at the time of his election to office. Regulation 1.5.4(A). Here, the Petitioner’s service as a volunteer firefighter predates his initial appointment and eventual election to the Operating Committee. Accordingly, based on the Petitioner’s representations, Regulation 1.5.4 does not prohibit him from continuing to serve as a member of the Operating Committee, notwithstanding his current employment as a volunteer firefighter within the Fire Department. See A.O. 2017-16 (opining that a member of the Lime Rock Board of Fire Commissioners could continue his contract employment as the Director of Plan Review for the Lime Rock Fire District, a position he had held since prior to his election to the Board of Fire Commissioners, provided that he recuse from participation in Board matters that would impact his employment as the Director of Plan Review); A.O. 2008-72 (opining that an East Providence City Council member’s towing company could remain on the City’s tow list, notwithstanding his membership on the City Council, given that his company had been on the tow list since before his election to office, but that his participation in City Council matters involving his company and others on the tow list, or relative to towing within the City in general, was prohibited); A.O. 2007-3 (opining that a Charlestown Town Council member could retain his part-time employment as a custodian at the Charlestown Senior Center which was held prior to his election to the Town Council, but that his participation in Town Council matters involving the Senior Center that would impact his part-time employment was prohibited). Compare A.O. 2013-11 (opining that a former volunteer firefighter in the Pascoag Fire District who resigned from that position in order to seek election to the Pascoag Fire District Board of Commissioners was prohibited from seeking reinstatement as a volunteer firefighter in the Fire District once elected to the Board, for the duration of his service on the Board, and for a period of one (1) year after leaving office). Although the Petitioner’s simultaneous service as a member of the Operating Committee and as a volunteer firefighter is not prohibited by Regulation 1.5.4, several other provisions of the Code of Ethics are implicated, as illustrated in the string of advisory opinions cited above. Specifically, 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). Further, a public official is prohibited from using his public office or confidential information received through his public office to obtain financial gain for himself, any person within his family, his business associate, or any business by which he is employed or which he represents. Section 36-14-5(d). Finally, a public official may not accept other employment that would impair his independence of judgment as to his official duties or require or induce him to disclose confidential information acquired by him in the course of his official duties. Section 36-14-5(b). Although the Code of Ethics does not create an absolute bar to the Petitioner’s simultaneous service in both positions, a matter-by-matter evaluation and determination as to whether substantial conflicts of interest exist with respect to the Petitioner’s execution of his duties in the public interest will be required on an ongoing basis. Presently, given the Petitioner’s representation that the Operating Committee has no direct involvement in the hiring or supervision of volunteer firefighters, coupled with his explanation of how stipends are funded and determined, it does not appear likely that the Petitioner’s activity as a member of the Operating Committee would impair his independence of judgment as to his official duties as a volunteer firefighter, or vice versa. Absent some direct financial nexus between the Petitioner’s actions as a member of the Operating Committee and his actions as a volunteer firefighter in the same district, no inherent conflict of interest would preclude such simultaneous service. Further, the Petitioner’s description of his duties, both as a member of the Operating Committee and as a volunteer firefighter in the same district, do not indicate that such simultaneous service, in and of itself, creates a substantial conflict of interest within the meaning of the Code of Ethics. The Petitioner represents that the members of the Operating Committee, with input and advice from two members of the Fire Department who are not members of the Operating Committee, are tasked with hiring the Fire Chief to whom the Petitioner will eventually report in his capacity as a volunteer firefighter. While this could potentially present an appearance of impropriety, any such appearance of impropriety would likely be lessened by the system in place under which the volunteer firefighters respond to and are compensated for emergency calls and the lack of discretion on the part of the Fire Chief with respect to both. Additionally, the termination of a volunteer firefighter’s employment requires a majority vote by all officers and senior members of the Fire Department. In summary, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from simultaneously serving as a member of the Operating Committee and as a volunteer firefighter in the Dunn’s Corner Fire District, given that his employment as a volunteer firefighter predates his election to the Operating Committee. However, this advisory opinion is limited to the specific issue of simultaneous service only. It does not, nor can it, contemplate circumstances in which the Operating Committee might be tasked with deciding matters that might impact volunteer firefighters like the Petitioner. Therefore, the Petitioner is advised that if any matters should come before him as he is carrying out his duties in either of his public roles that may present a potential conflict of interest, or if circumstances arise 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, 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) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-6 § 36-14-7(a) 520-RICR-00-00-1.5.4 Municipal Official Revolving Door (36-14-5014) Related Advisory Opinions: A.O. 2017-39 A.O. 2013-11 A.O. 2008-72 A.O. 2007-3 Keywords: Dual Public Roles Revolving Door