Advisory Opinion No. 2020-36 Rhode Island Ethics Commission Advisory Opinion No. 2020-36 Approved: September 22, 2020 Re: James J. Lombardi III, Esq., CPA QUESTION PRESENTED The Petitioner, who is the City Treasurer and Senior Advisor for the City of Providence, both municipal appointed positions; the Chairman of the Donald W. Wyatt Detention Facility Board of Directors, a quasi-municipal appointed position; a member of the Rhode Island Board of Accountancy, a state appointed position; a member of the North Smithfield School Committee, a municipal elected position; and, who in his private capacity is an attorney and Certified Public Accountant, requests an advisory opinion regarding whether the Code of Ethics prohibits him from simultaneously serving in all of the aforementioned positions. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, who is the City Treasurer and Senior Advisor for the City of Providence, both municipal appointed positions; the Chairman of the Donald W. Wyatt Detention Facility Board of Directors, a quasi-municipal appointed position; member of the Rhode Island Board of Accountancy, a state appointed position; a member of the North Smithfield School Committee, a municipal elected position; and, who in his private capacity is an attorney and Certified Public Accountant, is not prohibited by the Code of Ethics from simultaneously serving in all of the aforementioned positions. The Petitioner states that he is employed by the City of Providence (“City” or “Providence”) as its Treasurer and as a Senior Advisor. He represents that his employment, which is through appointment by the Providence City Council (“City Council”), is full-time based on a 35-hour work week. He further represents that his work hours, which are split between his two positions, are non-standard, adding that he often performs his duties outside the normal business hours of City Hall. The Petitioner states that the duties of the City Treasurer are proscribed by the Providence Home Rule Charter (“Charter”), article VI, section 602 and include, among other things, signature authority over checks and bonds, control over disbursements of checks, and custody of City funds. He further states that, as Treasurer, he has no authority over the Finance Department, the School Department, tax matters, or the creation of the City’s budget. The Petitioner notes that, outside of the four employees in the Treasurer’s Office, he does not have any supervisory control or control over payroll or rate of pay relative to any other City employees. The Petitioner states that, by Charter, the Treasurer is also a member of the City’s Retirement Board, for which he currently serves as the Chairman and which reviews matters related to disability pension eligibility. Furthermore, by Charter, the Treasurer is also a member of the City’s Board of Investments, for which the Petitioner is the Vice-Chairman, and which reviews matters relative to investments. The Petitioner explains that, as a Senior Advisor, he works with the Finance Committee and the City Council and, as directed by the Council President, assists in the resolution of complicated matters that may arise with various departments affecting the City. The Petitioner represents that he is also the Chairman of the Donald W. Wyatt Detention Facility Board of Directors (“Board of Directors”) by appointment of the Mayor of the City of Central Falls. The Petitioner explains that the Board of Directors meets in the evenings, once per month and, that beyond the regularly scheduled meetings he communicates with the warden a couple of times per week, and does not receive any remuneration for his services. He explains that the Board of Directors votes on the facility’s budget and sets all Board policies. The Petitioner states that he is also a member of the Rhode Island Board of Accountancy, having been appointed by the Governor, and for which he does not receive any remuneration. He explains that the Board of Accountancy reviews disciplinary matters and matters related to the state’s regulation of accountants. The Petitioner represents that he is a resident of North Smithfield and that, in 2016, he was elected to the North Smithfield School Committee. He explains that the School Committee meets once per month and that he communicates with the Superintendent on a weekly basis. In his private capacity, the Petitioner is an attorney and also a Certified Public Accountant. He states that the focus of his limited legal practice is preparing tax returns. He states that he performs this work on nights and weekends or in the mornings before he reports to City Hall. The Petitioner represents that, if needed, he takes a leave from his employment with the City to perform any of his other duties. He states that a person had sent him an email and posted on a blog that the Petitioner’s holding of all of his positions presents a conflict of interest. Thus, based on this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether the Code of Ethics prohibits him from simultaneously serving in all of the positions. Under the Code of Ethics, a public official or employee 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 public official or employee will have an interest in substantial conflict with his official duties if he has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his activity, to the official himself, his family member, his business associate, his employer, or any business that he represents. Section 36-14-7(a). A public official or employee is also prohibited from accepting 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). Additionally, section 36-14-5(d) prohibits a public official or employee from using his position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, his family member, his business associate or his employer. In prior advisory opinions, the Ethics Commission has consistently concluded that the Code of Ethics does not create an absolute bar against a person’s simultaneous service in different governmental entities, even if they are within the same municipality. See A.O. 2015-14 (opining that a member of the Bristol Warren Regional School Committee, who was also an alternate member of the Bristol Juvenile Hearing Board was not prohibited by the Code of Ethics from simultaneously serving in both positions because, although those public entities had some overlapping jurisdiction over discipline of juveniles who resided in Bristol, it was unlikely that the same incident would be considered by both the School Committee and the Hearing Board); A.O. 2011-18 (opining that the Chief of Staff for the Town of Johnston was not prohibited by the Code of Ethics from continuing to serve as the Chairman of the Board of Commissioners for the Rhode Island Resource Recovery Corporation absent some direct financial nexus between the petitioner’s two duties). Here, the Petitioner’s public duties as described above are all separate and distinct. There is no indication that serving in any one of the above-described public capacities would impair the Petitioner’s independence of judgment as to his public responsibilities in any of his other public roles. Nor is there any indication that his simultaneous service, in and of itself, creates a substantial conflict with respect to carrying out his duties in the public interest. Also, the Ethics Commission has previously given its approval to public employees to accept outside employment provided that: (1) the public employee’s official duties did not directly relate to his or her private employment; (2) the public employee completed such work outside of his or her normal working hours and without the use of public resources; and (3) the public employee did not appear before his or her own agency. See A.O. 2007-22 (opining that an attorney employed by the Rhode Island Department of Labor & Training could accept part-time employment as a prosecutor for the North Providence Municipal Court, provided that all such municipal work be performed on her own time and without the use of state resources). Here, based on the facts as presented, it is unlikely that the Petitioner’s duties relative to his private legal practice would impact his responsibilities relative to any of his public positions, given that his private work is separate and distinct from his public duties and that he completes his private work on his own time. Accordingly, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from simultaneously serving in all of the positions as described above as such simultaneous service does not present an inherent conflict of interest under the Code of Ethics. The Petitioner is cautioned, however, that if any particular matter should arise in any of his public positions that would financially impact the Petitioner, any person within his family, his business associate or his employer, then the Petitioner must recuse from participation and voting on such matter or seek further guidance from the Ethics Commission. Notice of recusal must be filed 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 § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Related Advisory Opinions A.O. 2015-14 A.O. 2011-18 A.O. 2007-22 Keywords : Dual Public Roles Private Employment