Advisory Opinion No. 2021-20

Rhode Island Ethics Commission

Advisory Opinion No. 2021-20

Approved:  March 16, 2021

Re:  Caswell Cooke, Jr.

QUESTION PRESENTED:

The Petitioner, a member of the Westerly Town Council, a municipal elected position, requests an advisory opinion regarding whether the Town Council may discuss and vote on the renewal of an existing lease agreement with the Misquamicut Business Association (“MBA”), given that the Petitioner is employed in his private capacity by the MBA as its Executive Director. 

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Westerly Town Council may discuss and vote on the renewal of an existing lease agreement with the Misquamicut Business Association (“MBA”), notwithstanding that the Petitioner, a member of the Westerly Town Council, a municipal elected position, is employed in his private capacity by the MBA as its Executive Director.  However, the Petitioner is required to recuse himself from participation in the Town Council’s discussions and vote concerning the renewal of the existing lease, and from any matters in which the MBA or its representatives appear or present evidence or arguments on behalf of the MBA before the Town Council.  The Petitioner is further prohibited by the Code of Ethics from representing the MBA before the Town Council, or any other municipal agency over which the Town Council has appointing authority, and 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 person by which he is employed or whom he represents. 

The Petitioner is a member of the Westerly Town Council (“Town Council”) and he has served in that position since 2018.[1]  The Petitioner represents that, in his private capacity for the past 20 years, he has been employed part-time as the Executive Director of the Misquamicut Business Association (“MBA”), a nonprofit organization founded in 2000.  He informs that the MBA is governed by a Board of Directors, of which he is not a member, and that the MBA works to promote all businesses on Misquamicut Beach (“beach”), as well as cleaning the beach, and organizing beach events. 

The Petitioner states that, approximately 15 years ago, the MBA entered into a lease agreement (“lease agreement”) with the Town of Westerly (“Westerly” or “Town”) to maintain and staff a small facility at the beach which houses two public restrooms and a counter space which is utilized by the MBA to provide tourist information.  The Petitioner represents that, five years after entering into the lease agreement, the MBA inquired and was allowed to use the Town’s beach parking lot at night to operate a drive-in theater.  He informs that the lease agreement was amended to include the drive-in theater activities.  The Petitioner represents that the lease agreement has since been renewed several times and that the latest lease agreement expired in September of 2020.  He states that the Town has not offered a new lease agreement to the MBA because of the Town’s concern that the Petitioner’s simultaneous service as the Executive Director of the MBA and as a Town Council member presents a conflict of interest under the Code of Ethics prohibiting the Town from renewing the lease agreement with the MBA.  The Petitioner represents that any discussions on behalf of the MBA relative to the renewal of the lease agreement will be performed by the President of the MBA’s Board of Directors, without any participation by the Petitioner.  The Petitioner states that any Town Council vote to approve the lease agreement or to authorize the Town Manager to sign it, is conducted in open session.  He represents that he will recuse from any and all Town Council discussions and voting relative to the lease agreement.[2]  The Petitioner adds that he is a salaried employee of the MBA and that his salary does not depend on renewal of the lease agreement.  Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether the Town Council may negotiate and potentially enter into a new lease with the MBA.

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 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).  Additionally, a public official is prohibited 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 person by which he is employed or whom he represents.  Section 36-14-5(d).  Further, a public official must recuse from participation when his business associate or employer appears or presents evidence or arguments before his state or municipal agency.  Commission Regulation 520-RICR-00-00-1.2.1(A)(2) Additional Circumstances Warranting Recusal (36-14-5002) ( Regulation 1.2.1”); section 36-14-5(f).  Lastly, Section 36-14-5(e) (“section 5(e)”) prohibits a public official or employee from representing himself, representing another person, or acting as an expert witness before a state or municipal agency of which he is a member or by which he is employed.  Section 36-14-5(e)(1), (2) & (3); see also Commission Regulation 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016).  Section 5(e)’s prohibitions continue while the official remains in office and for a period of one (1) year thereafter.  Section 36-14-5(e)(4).  

In Advisory Opinion 2012-30, the Superintendent of State Piers for the Rhode Island Department of Environmental Management (“DEM”) sought guidance from the Ethics Commission regarding whether the Code of Ethics restricted his wife from entering into a land lease with DEM, given that the petitioner was a DEM employee and worked in and was responsible for the day-to-day operations of the same port where the subject land was located.  The Ethics Commission opined that the Code of Ethics did not prohibit the wife from entering into the land lease with DEM based on the petitioner’s representations that his work was limited to the maintenance and supervision of the state piers and their use by commercial vessels, that he had no involvement, oversight, or authority over the management of DEM land leases in the port nor would he have any involvement in the day-to-day operations of his wife’s store located on the leased premises, which would be managed and operated by his wife.  Additionally, the petitioner represented that he would not appear or represent himself or his wife before DEM.  Likewise, in Advisory Opinion 2007-6, the Ethics Commission opined that the Code of Ethics did not prohibit an attorney with whom the Solicitor for the Town of Smithfield shared office space and expenses from appearing before the Town Council and the Planning and Zoning Board, provided that the petitioner recused himself from participation in any matter brought by the attorney.  See also A.O. 2011-47 (opining that a member of the Rhode Island Board of Governors for Higher Education was required to recuse from discussion and voting relative to contract negotiations involving his employer); A.O. 2009-1 (opining that a member of the Scituate Town Council was required to recuse from matters before the Town Council concerning school related issues involving the interests of his employer which provided busing services to the Scituate School Department).   

Here, the Petitioner represents that he will recuse from participating in any and all Town Council discussions and voting on matters pertaining to the lease agreement, and that the lease agreement will be negotiated and signed by the President of the MBA on behalf of the MBA.  As anticipated by the Petitioner, such recusal is required under the Code of Ethics.  The Petitioner must also recuse from participation in discussions and voting on any Town Council matters that may have a direct financial impact upon the MBA, and matters in which the MBA or its representatives appear or present evidence or arguments on behalf of the MBA before the Town Council.  Additionally, the Petitioner is prohibited by the Code of Ethics from representing the MBA before the Town Council, or any other municipal agency over which the Town Council has appointing authority.  Lastly, the Petitioner is prohibited by the Code of Ethics 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 person by which he is employed or whom he represents.  Notice of recusal shall be filed with the Ethics Commission consistent with section 36-14-6. 

However, under these circumstances, the restrictions that apply to the Petitioner based upon his employment relationship with the MBA do not, in and of themselves, extend to the other members of the Town Council.  Accordingly, based on the Petitioner’s representations, the applicable provisions of the Code of Ethics, and prior advisory opinions issued, it is the opinion of the Ethics Commission that the Petitioner’s employment by the MBA does not disqualify any other Town Council member from discussing and/or voting on the renewal of the lease agreement. 

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) 
§ 36-14-5(e)
§ 36-14-5(f)
§ 36-14-6
§ 36-14-7(a)
520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002)
520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) 

Related Advisory Opinions:
A.O. 2012-30
A.O. 2011-47
A.O. 2009-1
A.O. 2007-6

Keywords: 
Financial Interest

[1] The Petitioner previously served on the Town Council from 2002-2014.
[2] The Petitioner represents that the most recent lease agreement was renewed while he was not a member of the Town Council and was signed by him in his capacity as the MBA’s Executive Director.  The Petitioner informs that he has not in the past participated in Town Council discussions and voting relative to the lease agreement.