Advisory Opinion No. 2020-3 Rhode Island Ethics Commission Advisory Opinion No. 2020-3 Approved: January 7, 2020 Re: Kelly Levesque QUESTION PRESENTED: The Petitioner, the Town Sergeant for the Town of Tiverton, a municipal elected position, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places upon her simultaneously serving as the Co-Chair of the Tiverton Days Committee, a group of volunteers who organize family friendly events and activities for residents of the Town of Tiverton. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Town Sergeant for the Town of Tiverton, a municipal elected position, is not prohibited by the Code of Ethics from simultaneously serving as the Co-Chair of the Tiverton Days Committee, a group of volunteers who organize family friendly events and activities for residents of the Town of Tiverton. However, the Petitioner is prohibited by the Code of Ethics from appearing before the Town Council in her capacity as Co-Chair of the Tiverton Days Committee. The Petitioner is further prohibited from participating as the Town Sergeant in the event a member of the Tiverton Days Committee appears before the Town Council on a matter that involves or financially impacts the Tiverton Days Committee. The Petitioner was originally elected to the position of Town Sergeant for the Town of Tiverton (“Town”) in November of 2016. She was re-elected in November of 2018, and her present term will end in November of 2020. She identifies the following duties of Town Sergeant as listed in the Town Charter: attend all Town Council meetings; post Town Council agenda to designated bulletin boards in compliance with the Open Meeting Law; transport and post the voter list to each district; transport ballots to the State Board of Elections; and assist the Board of Canvassers at all Referenda. The Petitioner explains that the sole purpose for her attendance at Town Council meetings in her capacity as the Town Sergeant is to remove unruly citizens at the instruction of the Town Council President, adding that this has yet to happen during either of her terms of service. The Petitioner further explains that the Chief of Police will be called upon to assist her, as necessary, in the execution of her Town Sergeant duties during a Town Council meeting. The Petitioner represents that, in the summer of 2017, she joined the Tiverton Days Committee (“Days Committee”), which she describes as an informal Town committee composed of Town residents who volunteer their time to organize family friendly events and activities in the Town such as parades, concerts, children’s educational crafts, scavenger hunts, and fireworks. She further represents that she has served as the Co-Chair of the Days Committee since February or March of 2019, and that the Days Committee presently consists of approximately twenty active members who meet monthly for much of the year, and weekly as the planned summer activities approach. She adds that the Days Committee is not subject to Rhode Island’s Open Meeting Act, but that information about when and where meetings will be held gets posted on the Days Committee website and on social media and that all are welcome to attend. The Petitioner explains that the Days Committee is fully funded through corporate and private donations solicited by the Days Committee. She further explains that the Town does not budget for or distribute funds to the Days Committee, but that the Town Police, Fire Department, and Department of Public Works often perform services to aid the Days Committee in the presentation of events, for which the Days Committee is not charged. The Petitioner states that, by agreement between the Days Committee and the Town, the Town Treasurer holds the Days Committee bank account and signs all checks written from it. The Petitioner explains that check requests are signed by herself and a second member of the Days Committee, usually whomever it was who made the purchase for which reimbursement is being sought. The Petitioner states that, approximately three to five times per year, a representative of the Days Committee will appear before the Town Council to seek special event permits and/or sound variances necessary for events being organized by the Days Committee.[1] The Petitioner adds that, at the end of each summer, someone from the Days Committee reports to the Town Council about the events that were sponsored by the Days Committee that year. 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 her serving simultaneously as the Town Sergeant and as Co-Chair of the Days Committee. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, 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 substantial conflict of interest exists if a public official has reason to believe or expect that she, any person within her family, her business associate or her employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). A “business associate” is defined as an individual or business entity joined together with another person to achieve a common financial objective. Section 36-14-2(3), (7). A public official is also prohibited from accepting other employment that would impair her independence of judgment as to her official duties or require or induce her to disclose confidential information acquired by her in the course of her official duties. Section 36-14-5(b). The Code of Ethics also prohibits a public official from using her public office or confidential information received through her public office to obtain financial gain 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, the Code of Ethics prohibits a public official from representing herself or any other person before a municipal agency of which she is a member, by which she is employed, or for which she is the appointing authority. Section 5(e)(1) & (2) (“Section 5(e)”). A person represents herself or another person before an agency when she participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of that agency. Section 36-14-2(12) & (13); Commission Regulation 520-RICR-00-00-1.1.4(A)(1) & (2) Representing Oneself or Others, Defined (36-14-5016). A “person” means an individual or business entity. Section 36-14-2(7). Finally, a public official must recuse herself from participation when her business associate or employer, or a person authorized by her business associate or employer, appears or presents evidence or arguments before her municipal agency. Commission Regulation 520-RICR-00-00-1.2.1(A)(2) & (3) Additional Circumstances Warranting Recusal (36-14-5002) (“Regulation 1.2.1”). Here, based on the facts as represented by the Petitioner, there is no indication that serving as both the Town Sergeant and as Co-Chair of the Days Committee would either impair her independence of judgment as to her public responsibilities as the Town Sergeant or require her to disclose confidential information acquired by her in the course of her official duties in that role. Nor is there any indication that her simultaneous service, in an of itself, creates a substantial conflict with respect to the exercise of her public duties as Town Sergeant. That notwithstanding, while the unique nature of the facts as represented by the Petitioner do not fit squarely within the confines of Sections 5(a) and 7(a), and in particular within the confines of Section 5(e) or Regulation 1.2.1, in the context of an Advisory Opinion, and in consideration of the State of Rhode Island’s constitutionally expressed goal of avoiding even the appearance of impropriety, it is the opinion of the Ethic Commission that the Petitioner should not appear before the Town Council to represent the interests of the Days Committee. Although the Petitioner is not a member of the Town Council, nor technically employed by it, she is required as the Town Sergeant to attend all Town Council meetings for purposes of executing her official duties at the direction of the Town Council President, much the same way that an employee would be expected to respond to the direction of her employer. Furthermore, in the past, the Ethics Commission has concluded that public officials are “business associates” of entities for which they serve either as members of the Board of Directors or as officers or in other leadership positions that permit them to affect the financial objectives of the organization. See A.O. 2009-10 (opining that a member of the Middletown Town Council was required to recuse from matters concerning the Middletown Historical Society, given that she was the Treasurer of the Historical Society, and thus its business associate); A.O. 2000-74 (concluding that Housing Authority Commissioners could not participate in that Authority’s consideration of the Westerly Housing Association’s funding request because, as members of the Board of Directors of the Housing Association, the Commissioners had a business association with it). Accordingly, the Petitioner is considered a business associate of the Days Committee for purposes of the Code of Ethics. As such, it is the opinion of the Ethics Commission that the Petitioner is required to recuse from participating as the Town Sergeant when a member of the Days Committee appears before the Town Council on any matter that involves or financially impacts the Days Committee. All recusals shall be in accordance with Section 36-14-6. In summary, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from simultaneously serving as both the Town Sergeant and as Co-Chair of the Days Committee. The Petitioner is, however, prohibited by the Code of Ethics from appearing before the Town Council to represent the interests of the Days Committee. The Petitioner is further prohibited by the Code of Ethics from participating as the Town Sergeant when a member of the Days Committee appears before the Town Council on a matter that involves or financially impacts the Days Committee. 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(3) § 36-14-2(7) § 36-14-2(12) § 36-14-2(13) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-5(e) § 36-14-6 § 36-14-7(a) 520-RICR-00-00-1.1.4 Representing Oneself of Others, Defined (36-14-5016) 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002) Related Advisory Opinions: A.O. 2009-10 A.O. 2000-74 Keywords: Dual Public Roles [1] The Petitioner explains that, before seeking permits and/or variances from the Town Council, a member of the Days Committee must first appear before the Recreation Commission, the members of which are appointed by the Town Council, to seek approval for the use of Town facilities such as the beach or school fields. Following Town Council approval of special use permits and/or sound variances, the Days Committee will seek permission as necessary from the State Department of Transportation to close certain roads during an activity and/or from the State Department of Environmental Management and Coast Guard to set off fireworks from a barge in the bay.