Advisory Opinion No. 2020-35 Rhode Island Ethics Commission Advisory Opinion No. 2020-35 Approved: August 18, 2020 Re: Michael J. Dutilly, Sr. QUESTION PRESENTED The Petitioner, the recently elected Clerk for the Harrisville Fire District, a municipal elected position, and a firefighter for the Harrisville Fire District, a municipal employee position, who in his private capacity is the President of the Harrisville Firefighters Association IAFF Local 4910, requests an advisory opinion regarding whether the Code of Ethics prohibits him from serving as Clerk, given his employment as a firefighter and his position as the President of the Harrisville Firefighters Association IAFF Local 4910. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the recently elected Clerk for the Harrisville Fire District, a municipal elected position, and a firefighter for the Harrisville Fire District, a municipal employee position, who in his private capacity is the President of the Harrisville Firefighters Association IAFF Local 4910, is not prohibited by the Code of Ethics from serving as Clerk, notwithstanding his employment as a firefighter and his position as the President of the Harrisville Firefighters Association IAFF Local 4910. The Petitioner was recently elected Clerk of the Harrisville Fire District (“Fire District”) by the Fire District’s qualified voters during the Fire District’s July 14, 2020 annual meeting. For more than nine years prior to his election the Petitioner has been, and continues to be, employed by the Fire District as a firefighter. Additionally, he is the President of the Harrisville Firefighters Association IAFF Local 4910 (“Local 4910”), position to which he was elected by the members of Local 4910 and which he has held for the past seven years. The Petitioner explains that the Fire District is comprised of the Fire Department, Hose Company No.1, and the Harrisville Water Department. The Petitioner represents that the overall management of the Fire District lies in the hands of a seven-member, elected Operating Committee which, among other duties, prepares the Fire District budget, authorizes contracts, negotiates the union contract with Local 4910, conducts oversight of the Fire and Water Departments, sets the tax rate, collects taxes and, along with the Fire Chief, performs all employer-related duties relative to the Fire Department. The Petitioner states that the Clerk is not a member of the Fire District’s Operating Committee, does not participate in the Operating Committee’s discussions of any management matters that come before it, does not attend the Operating Committee’s meetings, and does not participate in the Fire District’s contract negations with Local 4910. He further states that, pursuant to the Fire District’s Charter (“Charter”), the Clerk along with the Moderator and the three Assessors are the officers of the Fire District[1] and their duties “shall be such as like officers of towns in the state.”[2] The Petitioner explains that the duties of the Clerk are those set forth in the Charter and the Fire District’s By-Laws (“By-Laws”) which specify that: the clerk or the moderator shall “call a special meeting upon written application signed by twelve (12) electors of the district or upon the order of the operating committee;”[3] the Clerk shall keep and maintain minutes of any meeting of the Fire District;[4] “[the Secretary] along with the Clerk of the District, [shall] be considered custodian of the records and seal of the District;”[5] and “any bonds or other instruments of indebtedness shall be signed by the clerk or any member of the operating committee designated in the resolution authorizing the same and shall bear the seal of the district or a facsimile thereof.”[6] Additionally, the Petitioner represents that he is one of the eight so-called “career” firefighters employed and paid for their services by the Fire District. He explains that, in addition to the “career” firefighters, the Fire District is supported by so called “per diem” firefighters who are compensated for each call that they respond to, as well as “true volunteer” firefighters who serve without compensation. The Petitioner represents that, as a firefighter, he is directly supervised by the Fire Chief and that the Operating Committee has hiring authority over the Fire Chief and the firefighters. Lastly, the Petitioner represents that, as President of Local 4910, he is involved in collective bargaining negotiations, administration of grievances, and other issues that may arise between Local 4910 and the Fire District. The Petitioner notes that all such matters are reviewed and acted upon by the Operating Committee without the participation of the Clerk. Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether the Code of Ethics permits him to perform the above-reference duties as Clerk, given that he is presently a paid, full-time employee of the Fire District and the President of Local 4910. As an initial matter, under Commission Regulation 520-RICR-00-00-1.5.4 Municipal Official Revolving Door (36-14-5014) (“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). However, 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 firefighter predates his election as Clerk. Accordingly, based on the Petitioner’s representations, Regulation 1.5.4 does not prohibit him from serving as Clerk, notwithstanding his current employment as a firefighter within the Fire District. See A.O. 2020-25 (opining that a member of the Dunn’s Corners Fire District Operating Committee who was also a volunteer firefighter on the Dunn’s Corners Fire Department, was not prohibited from simultaneously serving in both positions, given that his employment as a volunteer firefighter predated his election to the Operating Committee); 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 recused from participation in Board matters that would impact his employment as the Director of Plan Review); 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). Furthermore, the Code of Ethics does not create an absolute bar to the Petitioner’s simultaneous service as Clerk while also employed by the Fire District as a firefighter and while holding the position of President of Local 4910. However, 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. 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. Section 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, under Commission Regulation 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002), the Petitioner must recuse from participation in any matter if his business associate or employer appears or presents evidence or arguments before the Petitioner’s state or municipal agency. A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). The Ethics Commission has repeatedly concluded that persons are “business associates” of the entities for which they serve as either officers or members of the Board of Directors, or in some other leadership position that permits them to affect the financial objectives of the organization. See, e.g., A.O. 2012-9; A.O. 2010-25; A.O. 2009-10; A.O. 2008-35. Presently, given the Petitioner’s representation that the Clerk is not a member of the Operating Committee, does not participate in the Operating Committee’s meetings, has no direct involvement in the hiring or supervision of the firefighters, and does not participate in the collective bargaining between the Operating Committee and Local 4910, it does not appear likely that the Petitioner’s roles as a firefighter and President of Local 4910 would create a substantial conflict of the proper discharge of his duties as Clerk, or vice versa. Absent some direct financial nexus between the Petitioner’s actions as Clerk and his positions as a firefighter in the same district and President of its local union, no inherent conflict of interest would preclude such simultaneous service. Furthermore, in the present matter, the Petitioner is a business associate of Local 4910 because he holds a leadership position in that organization as its President. As such, Regulation 1.2.1 requires that the Petitioner recuse from all matters that financially impact Local 4910 or for which a representative or legal counsel for Local 4910 appears or presents evidence or argument on behalf of Local 4910 before the Petitioner either as Clerk or firefighter. See A.O. 98-44 (opining, inter alia, that a Commissioner on the Fire Safety Code Board of Appeal and Review must recuse from matters involving property owned by IAFF, Local 799, given that he was the President of Local 799 and, thus, a business associate of that entity). In summary, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from serving as Clerk of the Fire District, notwithstanding his employment as a firefighter in the District and his position as the President of Local 4910. However, 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 or his business associate, 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 § 36-14-5(a) § 36-14-5(d) § 36-14-5(e) § 36-14-6 § 36-14-7(a) 520-RICR-00-00-1.1.4 Representing Oneself or Others, defined (36-14-5016) 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002) 520-RICR-00-00-1.5.4 Municipal Official Revolving Door (36-14-5004) Related Advisory Opinions A.O. 2020-25 A.O. 2017-16 A.O. 2013-11 A.O. 2012-9 A.O. 2010-25 A.O. 2009-10 A.O. 2008-35 A.O. 98-44 Keywords : Dual Public Roles Revolving Door [1] See The Charter of the Harrisville Fire District, §§ b(C)(1) & (3), https://www.harrisvilleri.org/dis-charter.htm (last visited August 12, 2020). [2] See id., § b(C)(1). [3] See id., § c(C). [4] See id., § c(F)(2). [5] By-Laws of the Harrisville Fire District, § II (D)(3)(c), https://www.harrisvilleri.org/Bylaws.pdf, (last visited August 12, 2020). [6] See The Charter of the Harrisville Fire District, § h(A); https://www.harrisvilleri.org/dis-charter.htm (last visited August 12, 2020).