Advisory Opinion No. 2020-49 Rhode Island Ethics Commission Advisory Opinion No. 2020-49 Approved: December 8, 2020 Re: Benoit Gauthier QUESTION PRESENTED The Petitioner, a member of the Town of Little Compton Budget Committee, a municipal elected position, who is also a member of the Town of Little Compton Harbor Commission, a municipal appointed 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 Petitioner, a member of the Town of Little Compton Budget Committee, a municipal elected position, who is also a member of the Town of Little Compton Harbor Commission, a municipal appointed position, is not prohibited by the Code of Ethics from simultaneously serving in both positions. The Petitioner is a member of the Budget Committee (“Budget Committee”) in the Town of Little Compton (“Town” or “Little Compton”). He represents that the Budget Committee’s primary responsibility is the evaluation of all requests for appropriation from Town Departments or citizens during the course of the budget year or at the Financial Town Meeting, and the presentation of a proposed budget recommendation ahead of the Annual Financial Town Meeting to the electorate. The Budget Committee is comprised of five (5) members who are elected at the Financial Town Meeting for staggered two-year terms. The Petitioner states that he was elected to the Budget Committee in May of 2019, with his term expiring in May of 2021, and that he is not planning on running for reelection. The Petitioner represents that the position does not carry any remuneration. In October of 2020, the Petitioner was appointed by the Little Compton Town Council (“Town Council”) to a three-year term on the Town’s Harbor Commission (“Harbor Commission”), a position that does not carry any remuneration. The Petitioner states that the Harbor Commission is an advisory body to the Town Council regarding the implementation of the Harbor Management Plan and related ordinances. The Harbor Commission consists of seven (7) members appointed by the Town Council to staggered terms of three years. The Petitioner states that he does not anticipate any conflict of interest arising from serving in both positions. He explains that fees paid by harbor users are collected by the Town and transferred to the State-mandated Harbor Management Fund to cover operating costs. He adds that outflow from the Harbor Management Fund is controlled by the Town Council, not by the Budget Committee, and that the only seam that exists between the Budget Committee and the annual revenue accumulated from harbor fees paid to the Town is a perfunctory recommendation in the Budget Committee’s Annual Report to taxpayers in advance of the Financial Town Meeting to transfer accumulated harbor fees to the Harbor Management Fund. The Petitioner states that if there were to evolve an initiative to derive revenue from additional rent-seeking in the Harbor, it would not be possible without the consent of a majority of the Harbor Commission, the Town Council, the electorate at a Town Meeting, and the State. Under the Code of Ethics, a public official shall not have any interest, financial or otherwise, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, which 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 an official has reason to believe or expect that he, any person within his family, his business associate or employer will derive a direct monetary gain, or suffer a direct monetary loss, by reason of his official activity. Section 36-14-7(a). A public official 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, the Code of Ethics prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family member, his business associate, or any business by which he is employed or which he represents. Section 36-14-5(d). The Ethics Commission has consistently concluded that Code of Ethics does not create an absolute bar against a person’s simultaneous service in two different governmental entities, even if they are within the same municipality. See A.O. 2017-15 (opining that the Interim Town Manager for the Town of New Shoreham, who was also the Chairperson of the New Shoreham Library Board of Trustees, was not prohibited by the Code of Ethics from simultaneously serving in both positions); 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). Here, the Petitioner’s duties as a member of the Budget Committee and as a member of the Harbor Commission are separate and distinct. There is no indication that serving in both capacities would impair the Petitioner’s independence of judgment as to his public responsibilities in either role. 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. Accordingly, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from simultaneously serving as an elected member of the Budget Committee and as an appointed member of the Harbor Commission in the same municipality. The Petitioner is cautioned, however, that in the unlikely event that any particular matter arises in either of these positions that would financially impact him, any person within his family, his business associate or his employer, then the Petitioner must recuse from participation and voting on such matter consistent with section 34-14-6 or seek further guidance from the Ethics Commission. 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) § 34-14-6 § 36-14-7(a) Related Advisory Opinions A.O. 2017-15 A.O. 2015-14 Keywords Dual Public Roles