Advisory Opinion No. 2021-23 Rhode Island Ethics Commission Advisory Opinion No. 2021-23 Approved: March 16, 2021 Re: John Cullen QUESTION PRESENTED: The Petitioner, the Secretary of the Block Island Tourism Council, a municipal appointed position, requests an advisory opinion regarding whether he is prohibited by the Code of Ethics from participating in discussions and decision-making by the Tourism Council concerning whether to publicly support a pilot program proposed by the Rhode Island Public Transit Authority (“RIPTA”) wherein RIPTA would operate two trolleys on Block Island during the 2021 summer season, given that the Petitioner is currently on a waiting list to receive a taxi license on Block Island. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Secretary of the Block Island Tourism Council, a municipal appointed position, is not prohibited by the Code of Ethics from participating in discussions and decision-making by the Tourism Council concerning whether to publicly support a pilot program proposed by the Rhode Island Public Transit Authority (“RIPTA”) wherein RIPTA would operate two trolleys on Block Island during the 2021 summer season, notwithstanding that the Petitioner is currently on a waiting list to receive a taxi license on Block Island. The Petitioner currently serves as the Secretary of the Block Island Tourism Council (“Tourism Council”), having been appointed to membership on the Tourism Council by the Town of New Shoreham[1] (“Town” or “Block Island”) Town Council (“Town Council”). He states that the mission of the Tourism Council is to promote and market Block Island as a tourist destination and to assist the Town with issues impacting tourism. The Petitioner represents that RIPTA has recently proposed to the Town Council a pilot program wherein RIPTA would operate two trolleys on Block Island for the upcoming 2021 summer season, the intent being to reduce congestion on the roads and to disperse crowds more efficiently as they disembark from arriving ferries. The Petitioner offers that the Block Island Commission on Motor Vehicles for Hire, which is the governing body over the Block Island Taxi Cab License Holders, as well as a majority of taxi license holders on Block Island, are opposed to RIPTA’s proposal because they fear that the trolleys will have a negative economic impact on the taxi owners’ ability to make a living, given the potential for visitors to Block Island to opt to use a trolley instead of a taxi, which would take business away from taxi drivers. The Petitioner states that a Block Island taxi driver has asked the Tourism Council to take a public position against RIPTA’s proposal. The Petitioner emphasizes that it is the Town Council that will decide whether or not to adopt RIPTA’s proposal, adding that any involvement by the Tourism Council, should it opt to take a public position, be it for or against the proposal, would be in the form of a letter to the Town Council. He adds that the Town Council has not sought an opinion from the Tourism Council. The Petitioner represents that he has been on a waiting list to receive a taxi license on Block Island for some twenty years and estimates that, given his current position on the waiting list, he will not be granted a taxi license for another five to seven years. The Petitioner represents that no members of his family hold taxi licenses on Block Island, nor does anyone with whom he does business. The Petitioner further represents that in his private capacity he is the owner of B.I.T.’s, a retail store on Block Island. It is in the context of these facts that the Petitioner seeks guidance from the Ethics Commission regarding whether he may participate in discussions and decision-making by the Tourism Council regarding whether to advise the Town Council of its position regarding the RIPTA proposal. A person subject to the Code of Ethics may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the public official has reason to believe or expect that he, any person within his family, his business associate, or any business by which he is employed, 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 has reason to believe or expect a conflict of interest exists when it is “reasonably foreseeable,” that is, when the probability is greater than “conceivably,” but the conflict of interest is not necessarily certain to occur. Commission Regulation 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001). Further, a public official may not use his office for pecuniary gain, other than as provided by law, for himself, any person within his family, his employer, his business associate, or any business that he represents. Section 36-14-5(d). In order to determine whether the above provisions of the Code of Ethics are implicated, the Ethics Commission must ascertain whether the Petitioner will be financially impacted by the official action that is under consideration. If a financial impact, be it positive or negative, is not reasonably foreseeable, then the Petitioner is not required by these provisions of the Code of Ethics to recuse from participation in discussions and decision-making on the issue. See A.O. 2019-25 (opining that a member of the Cranston City Council could participate in City Council discussions and voting relative to a proposed ordinance that would ban the use of plastic bags by Cranston business establishments, notwithstanding that the petitioner owned and operated a restaurant in Cranston, given the petitioner’s representations that the proposed ordinance’s ban on plastic bags would have no impact on his current operations); A.O. 2012-2 (opining that an Exeter Town Council member, who was also a licensed firearms dealer, could participate in the Town Council’s discussions and voting on a resolution asking the General Assembly to change the state law regarding municipal licensing of concealed weapons because his business as a firearms dealer was not directly affected by the ability of the Town to issue permits to carry a concealed weapon). Here, there is nothing to indicate that the Petitioner would be financially impacted by his participation in the discussions and decision-making relative to RIPTA’s proposal because the Petitioner does not currently hold a taxi license on Block Island, has been on the waiting list for a taxi license for twenty years, and is not expected to obtain a taxi license for an estimated five to seven years. Accordingly, based upon the Petitioner’s representations, the application of the Code of Ethics, and consistent with prior advisory opinions issued, it is the opinion of the Ethics Commission that the Petitioner is not prohibited from participating in discussions and decision-making by the Tourism Council concerning whether to publicly support a pilot program proposed by RIPTA wherein RIPTA would operate two trolleys on Block Island during the 2021 summer season. The Petitioner is advised, however, that should circumstances change such that it does become reasonably foreseeable that he, or a member of his family, his business associate, or any business by which he is employed could be financially impacted by his participation, he must recuse from further participation consistent with section 36-14-6, 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: § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001) Related Advisory Opinions: A.O. 2019-25 A.O. 2012-2 Keywords: Conflict of Interest