Advisory Opinion No. 2021-10 Rhode Island Ethics Commission Advisory Opinion No. 2021-10 Approved: February 9, 2021 Re: Vahid Ownjazayeri QUESTION PRESENTED: The Petitioner, the Chairman of the Board of Directors of the Rhode Island Infrastructure Bank, a state appointed position, requests an advisory opinion regarding whether the Code of Ethics restricts his participation in various Board matters, given that his son is employed by the Rhode Island Infrastructure Bank. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Chairman of the Board of Directors of the Rhode Island Infrastructure Bank, a state appointed position, is prohibited by the Code of Ethics from participating in any Board matter in which his son will be financially impacted or receive an employment advantage. The Petitioner is further prohibited from participating in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of his son. The Petitioner was recently appointed by the Governor to serve as the Chairman of the Board of Directors (“Board”) of the Rhode Island Infrastructure Bank (“RIIB”).[1] The Petitioner states that the RIIB is a quasi-public agency, the mission of which is to support and finance investments in the state’s infrastructure, including energy and brownfields[2] remediation initiatives. The Petitioner further states that, having been appointed to the Board only recently, he has yet to attend a Board meeting, adding that the first Board meeting that he will have an opportunity to attend is scheduled for the end of February 2021. In his private capacity, the Petitioner is the Managing Director for Infrastructure at Global Infrastructure Solutions, Inc., a company with offices in New York and Los Angeles that offers new building construction, infrastructure upgradation, and modernization services to clients worldwide. The Petitioner states that his son has been employed by the RIIB for several years and is presently a Business Development Analyst for that agency. The Petitioner informs that his son reports to the Managing Director for Program and Business Development at the RIIB who, in turn, reports to the RIIB’s Chief Executive Officer and Executive Director. The Petitioner represents that the Board provides the RIIB with high level guidance and strategy in the areas of law, finance, and public administration. He adds that the Board is generally not involved in the day-to-day operations of the RIIB, and is not involved in the hiring, firing, promotion, or compensation of individual employees. The Petitioner states that the Board does not make individual decisions about the working conditions of the RIIB employees, including decisions about their compensation, promotion or discipline, and that it is extremely unlikely that the Petitioner would ever be placed in a position to do so. The Petitioner further states that, in the unlikely event that he is ever called upon to participate in any discussion or decision-making that would have a direct effect upon his son, he would recuse from participating in such discussion or decision-making. It is in the context of these facts that the Petitioner seeks advice from the Ethics Commission regarding whether the Code of Ethics restricts his participation in various Board matters. 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 in the public interest. R.I. Gen. Laws § 36-14-5(a). A public official will have an interest in substantial conflict with the proper discharge of his duties in the public interest if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, his family member, his business associate, his employer, or any business which the public official represents. Section 36-14-7(a); Commission Regulation 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001). Further, section 36-14-5(d) prohibits a public official from using his position, or confidential information received through his position, to obtain financial gain, other than that provided by law, for himself or any person within his family, his business associate, or any business by which the public official is employed or which he represents. The definition of “any person within his [] family” specifically includes “son.” Commission Regulation 520-RICR-00-00-1.3.1(A)(2) Prohibited Activities – Nepotism (36-14-5004) (“Regulation 1.3.1”). Participation in Matters That Financially Impact the Petitioner’s Son Under the general nepotism prohibitions of the Code of Ethics, specifically Regulation 1.3.1, a public official shall not participate in any matter as part of his public duties if he has reason to believe or expect that any person within his family, or any household member, is a party to or a participant in such matter, or will derive a direct monetary gain, suffer a direct monetary loss, or obtain an employment advantage. Regulation 1.3.1(B)(1). Such an employment advantage, which might not appear to be a direct financial gain for the official’s family member, could be some type of opportunity, such as an educational or travel experience, that the family member would not otherwise have had but for the involvement of the public official. Thus, in the event that the Petitioner’s son will be directly financially impacted or obtain an employment advantage by the Board’s decision-making, the Petitioner is required to recuse in accordance with section 36-14-6, as he correctly anticipated. See, e.g., A.O. 2019-19 (opining, inter alia, that a member of the Warwick School Committee was prohibited by the Code of Ethics from participating in any School Committee matter in which his mother was a party or participant, or in which she would be financially impacted or receive an employment advantage); A.O. 2013-8 (opining that a Bristol Town Council member was prohibited by the Code of Ethics from participating in the Town Council’s appointment of a new harbormaster and the Town Council’s review of any amendments to the harbormaster’s job description, given that his brother was then serving as interim harbormaster and was also one of nineteen applicants for the permanent harbormaster position); A.O. 2009-1 (opining that a Scituate Town Council member was prohibited by the Code of Ethics from participating in Town Council matters involving S & C Collins Bus Company, Inc. (“Collins Bus”), one of the three companies that provided school busing services to the Scituate School Department, given that Collins Bus was owned by his mother and he was an employee and officer of Collins Bus). Participation in Supervision and Evaluation of Petitioner’s Son Regulation 1.3.1 also prohibits a public official from participating in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within his family, or from delegating such tasks to a subordinate, except in accordance with advice received in a formal advisory opinion from the Ethics Commission. Regulation 1.3.1(B)(2)(a) & (b). The Commission has consistently opined that recusal is warranted in matters regarding the employment-related discussions and hiring processes involving family members. See A.O. 2019-19 (opining, inter alia, that a member of the Warwick School Committee was prohibited by the Code of Ethics from participating in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of his mother); A.O. 2016-26 (opining that a Lieutenant in the East Greenwich Fire Department was not prohibited from serving in that position upon the hiring of his brother as a Probationary Firefighter in the same Fire Department, provided that certain procedures were followed so that the Lieutenant was removed from personnel decisions or other matters that particularly affected his family member); A.O. 2009-34 (opining that the Chief of the West Warwick Fire Department was not prohibited from serving in that position if his son-in-law was a successful candidate for a firefighter position within the same department, provided that certain procedures were followed so that the Petitioner was removed from personnel decisions or other matters that particularly affect his family member, pursuant to an alternate chain of command proposed by the petitioner which effectively insulated him from decisions directly affecting his son-in-law). Accordingly, in the event, however unlikely, that the Petitioner is called upon to participate in a matter that involves the supervision, evaluation, appointment, classification, promotion, transfer or discipline of his son, the Petitioner is required to recuse in accordance with section 36-14-6, as he properly anticipated. This advisory opinion cannot anticipate every possible situation in which a conflict of interest might arise and, thus, provides only general guidance as to the application of the Code of Ethics based upon the facts represented above. The Petitioner is encouraged to seek additional advice from the Ethics Commission in the future as more specific questions regarding potential conflicts of interest arise. 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(d) § 36-14-6 § 36-14-7(a) 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001) 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) Related Advisory Opinions: A.O. 2019-19 A.O. 2013-8 A.O. 2016-26 A.O. 2009-34 A.O. 2009-1 Keywords: Nepotism Recusal [1] As of the drafting of this advisory opinion, the Petitioner had yet to be appointed to the Board, although his appointment was imminent. This advisory opinion was drafted with the expectation that the Petitioner’s appointment to the Board will have taken place by the date on which his request is considered by the Ethics Commission. [2] A brownfield is a former industrial or commercial site where future use is affected by real or perceived environmental contamination.