Advisory Opinion No. 2021-24 Rhode Island Ethics Commission Advisory Opinion No. 2021-24 Approved: March 16, 2021 Re: Jessica Willi QUESTION PRESENTED: The Petitioner, the Executive Director of the Block Island Tourism Council, a municipal employee position, requests an advisory opinion regarding: (1) what limitations, if any, the Code of Ethics places upon her in the performance of her public duties, given that her spouse owns Captain Nick’s Bar and Nightclub (“Captain Nick’s”) and Fishworks, a bait and tackle store and fishing charter business, and that her private employer owns Kimberly’s Restaurant (“Kimberly’s), among others, and; (2) whether the Code of Ethics prohibits her from engaging in secondary private employment at Captain Nick’s and/or Kimberly’s. RESPONSE: It is the opinion of the Ethics Commission that the Petitioner, the Executive Director of the Block Island Tourism Council, a municipal employee position: (1) is prohibited by the Code of Ethics from participating in any matter as part of her public duties that would financially impact her spouse and/or her private employer; and (2) is not prohibited by the Code of Ethics from engaging in secondary private employment at Captain Nick’s and/or Kimberly’s, provided that all work is performed on her own time and without the use of public resources or confidential information obtained as part of her municipal employment at the Tourism Council and, further provided, that the Petitioner shall not use her public position to promote or advertise her husband’s businesses or the businesses of her private employer beyond the scope of the ministerial duties described by the Petitioner herein. The Petitioner is employed as the Executive Director of the Block Island Tourism Council (“Tourism Council”). She states that the Tourism Council is composed of seven members who were appointed by the Town Council, and that the general mission of the Tourism Council is to promote and encourage tourism in the Town of New Shoreham[1] (“Town” or “Block Island” or “the island”). The Petitioner further states that she was hired by the Tourism Council in 2007, is the Tourism Council’s sole employee, and that her contract is renewable on a year-to-year basis. She explains that she is a salaried employee and, while she has no set hours, generally works for the Tourism Council from 9:00 am until 5:00 pm each Monday through Friday. The Petitioner identifies among her responsibilities at the Tourism Council: attending to marketing and public relations for Block Island as a vacation destination; working in cooperation with the Town to help mitigate the effects of tourism on Block Island’s infrastructure and environment; facilitating monthly meetings of the Tourism Council, and running the Tourism Council’s website, social media, and advertising campaigns. The Petitioner represents that, in her private capacity, she has worked for the last thirty years as a seasonal employee at Kimberly’s Restaurant (“Kimberly’s”) on Block Island as a bartender, waitress, hostess, and manager. The Petitioner further states that she usually works at Kimberly’s during the months of July and August, two weekend nights each week, from 6:00 pm until 11:00 pm. The Petitioner informs that the owner of Kimberly’s also owns Block Island Oyster Bar and Block Island Cookie Company, adding that she (the Petitioner) does not work at either of those establishments. The Petitioner represents that she has also worked for the last ten years as a seasonal employee at Captain Nick’s Bar and Nightclub (“Captain Nick’s) on the island as a bartender each July and August, one to two nights each week, usually from 9:00 pm until 3:00 am. The Petitioner represents that her husband purchased Captain Nick’s in June of 2020. She further represents that her husband also owns and operates Fishworks, a bait and tackle store and fishing charter business on the island at which the Petitioner does not work. The Petitioner states that all thirty of the restaurants on the island, including Kimberly’s, Block Island Oyster Bar, and Block Island Cookie Company, are identified on the Tourism Council’s website. She explains that there is no charge for any restaurant to be listed on the website, and that the names of all of the restaurants appear in alphabetical order. She further states that Captain Nick’s is one of the establishments identified on the website under the category of Taverns/Nightclubs, of which there are a total of five on the island, and which are also listed in alphabetical order at no charge to the owner. The Petitioner informs that her spouse’s other business, Fishworks, is one of the ten businesses on the island listed under the category of Recreation and one of the twenty-five establishments on the island listed under the category of Shopping. The Petitioner explains that all business owners whose establishments appear on the Tourism Council’s website are given the option to pay $150 per year for an expanded listing on the website which, while still appearing alphabetically on the corresponding list of establishments of its type, also includes a photo and website link. She states that Kimberly’s, RI Oyster Bar & Grille, and Fishworks have all paid for and received expanded listings on the Tourism Council website.[2] The Petitioner represents that, in her capacity as Executive Director for the Tourism Council, she has minimal contact with the business owners on the island. She states that, at one time, grants were sometimes awarded to island businesses by the Tourism Council, but that has not happened for years. The Petitioner states that, if asked by anyone to recommend a particular restaurant, nightclub, or other business on the island, rather than do so, she will direct the person making the inquiry to the entire list available through the Tourism Council. She emphasizes that she does not promote any specific businesses on the island, all of which are given equal treatment by the Tourism Council. The Petitioner states that, if pressed by a person for a specific recommendation, she will refer that person to the State Tourism Office. It is at the suggestion of the Tourism Council, and in the context of these facts, that the Petitioner seeks guidance from the Ethics Commission regarding what limitations, if any, the Code of Ethics places upon her in the exercise of her public duties, and whether she may engage in secondary employment at Kimberly’s and Captain Nick’s. Under the Code of Ethics, a public official or employee may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her 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 or employee has reason to believe or expect that she, any person within her family, her business associate, or her employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Additionally, the Code of Ethics prohibits a public official or employee from using her public office or confidential information received through her public office to obtain financial gain for herself, any person within her family, her business associate, or any business by which she is employed or which she represents. Section 36-14-5(d). “Any person within her family” includes a spouse. Section 36-14-2(1). Additionally, under Commission Regulation 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) (“Regulation 1.3.1”), a public official or employee shall not participate in any matter as part of her public duties if she has reason to believe or expect that any person within her 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). Further, the Code of Ethics provides that a public official or employee shall not accept other employment that would impair her independence of judgment as to her official duties or require or induce her to disclose confidential information acquired by her in the course of her official duties. Section 36-14-5(b). Limitations in Performance of Public Duties The Ethics Commission recently addressed the limitations placed by the Code of Ethics upon a municipal employee concerning her private employment. In Advisory Opinion 2021-3, the Ethics Commission opined that the Director of Social Services for the Town of Exeter, who in her private capacity was employed as a grant writer for the Rhode Island Center Assisting Those In Need (“RICAN”), was prohibited by the Code of Ethics from taking any non-ministerial official actions in her public capacity that would financially impact her private employer. There, the petitioner represented that opportunities for RICAN to receive grant funding could be reasonably expected to depend upon the number of people who benefitted from RICAN programs, including Exeter residents who might be directed to RICAN by the petitioner in her public capacity. The petitioner was prohibited from taking official action including, but not limited to, directing Exeter residents who sought an alternative to the Exeter food pantry either to or away from RICAN. The Ethics Commission opined that, were RICAN to appear on a list of all food pantries available to Exeter residents, and be presented in such a manner that the petitioner was neither advocating for nor against a client’s selection of RICAN as a food pantry, a violation of the Code of Ethics could be avoided. The Ethics Commission provided, by way of example, that were RICAN to be identified as one of all food panties available to Exeter residents, either listed alphabetically or by location in proximity to the petitioner’s office, the inclusion of RICAN as a source of food assistance for her clients would be a ministerial act on the part of the petitioner, as it would not involve discretion or decision-making on her part. Similarly, in the instant matter, the appearance in alphabetical order of the names of the establishments owned by the Petitioner’s husband and her private employer on the Tourism Council website appears to be a ministerial act on the part of the Petitioner which does not involve discretion or decision-making. The same can be said for the appearance of Kimberly’s, RI Oyster Bar & Grille, and Fishworks as expanded listings on the Tourism Council’s website following the payment of a set fee of $150. Under these circumstances, coupled with the Petitioner’s representation that she does not in her public capacity direct anyone to or away from patronizing any establishment on the island, there appears to be no violation of the Code of Ethics on the part of the Petitioner. Nonetheless, the Petitioner is advised to remain vigilant about her responsibility under the Code of Ethics to recuse from participating in any matter in her public capacity in which it is reasonably foreseeable that either her spouse or her employer will be financially impacted by reason of her official activity. The Petitioner is further advised that she may not use her public office, or confidential information received through her public office, to obtain financial gain for her spouse or her employer. All recusals shall be consistent with section 36-14-6. Secondary Private Employment The Ethics Commission has consistently opined that public officials and employees are not inherently prohibited from holding employment that is secondary to their primary public employment or positions subject, however, to certain restrictions and provided that their private employment would neither impair their independence of judgment nor create an interest in substantial conflict with their public duties. The Ethics Commission examines several factors when considering potential conflicts of interest regarding secondary employment. These factors include, but are not limited to, the nexus between the official’s public duties and private employment; whether the employee completes such work outside his or her normal working hours and without the use of public resources; whether the employee is to appear before, or his or her work product is to be presented to, his or her own agency; whether such work is to be conducted outside of the areas over which the person has decision-making jurisdiction; and whether the employee uses his or her position to solicit business or customers. See General Commission Advisory No. 2009-4. For example, in Advisory Opinion 2019-67, the Ethics Commission opined that a Rhode Island Family Court Investigator was not prohibited by the Code of Ethics from owning and operating a private investigation firm, provided that all of the work was performed on his own time and without the use of public resources or confidential information obtained as part of his state employment with the Family Court. Further, the petitioner could not use his public position to promote or advertise his private employment, nor could he list his public employment as part of the advertisement of his private work. Additionally, the petitioner was required to recuse from any matter that came before him as a Family Court Investigator that involved any of the attorneys or entities for which he either provided private investigative services or with which he contracted on a regular basis. See also A.O. 2012-32 (opining that the Acting Director of the Department of Planning and Development for the City of Providence was not prohibited by the Code of Ethics from teaching a course at Brown University, provided that all teaching work was performed on his own time and he did not use public resources or confidential information obtained as part of his employment with the City; however the petitioner was required to recuse from any matters relating to Brown University that might come before him in his public capacity as Acting Director of the Department of Planning and Development and to refer such matters to his superiors); A.O. 2019-53 (opining that a Vocational Rehabilitation Counselor for the Rhode Island Department of Human Services, Office of Rehabilitation Services (“ORS”), was not prohibited by the Code of Ethics from working as a certified yoga instructor for young children and/or adults with disabilities, provided that all of the work was performed on her own time and without the use of public resources or confidential information obtained as part of her state employment at ORS and, further provided that the Petitioner did not use her public position to promote or advertise her private employment, or list her public employment as part of the advertisement of her private work). In the present matter, the Petitioner’s representations do not indicate that her secondary employment as a bartender, waitress, hostess, or manager would either impair her independence of judgement or create an interest in substantial conflict with her public duties at the Tourism Council. Accordingly, the Code of Ethics does not prohibit the Petitioner from working in her private capacity as a bartender at Captain Nick’s, and/or as a bartender, waitress, hostess, or manager at Kimberly’s, provided that all of the work is performed on her own time and without the use of public resources or confidential information obtained as part of her municipal employment at the Tourism Council. Further, the Petitioner shall not use her public position to promote or advertise her husband’s businesses or the businesses of her private employer beyond the scope of the ministerial duties described by the Petitioner herein. Finally, the Petitioner is advised that if there are any changes in her employment at the Tourism Council whereby a particular matter that comes before her could present a conflict of interest under the Code of Ethics, she must either recuse from participation in such matter 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: § 36-14-2(1) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-6 § 36-14-7(a) 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) Related Advisory Opinions: General Commission Advisory No. 2009-4 A.O. 2021-3 A.O. 2019-67 A.O. 2019-53 A.O. 2012-32 Keywords: Conflict of Interest Secondary Employment [1] The Town of New Shoreham is also known as Block Island. [2] The Petitioner states that business owners on the island also have the option of paying a $600 fee for an expanded premiere listing on the Tourism Council’s website, for which their businesses are listed at the top of a category rather than alphabetically, and with an advertisement and larger picture than that afforded those who have paid for an extended listing. She further states that neither her husband nor her employer has paid for or received expanded premiere listings for the businesses that they own.