Advisory Opinion No. 2021-37 Rhode Island Ethics Commission Advisory Opinion No. 2021-37 Approved: May 18, 2021 Re: Angelica Bovis QUESTION PRESENTED: The Petitioner, a member of the Smithfield Town Council, a municipal elected position, and a former member of the Smithfield Land Trust, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from participating in Town Council discussions and voting on property matters in which she had previously participated and voted as a member of the Land Trust. RESPONSE: It is the opinion of the Ethics Commission that the Petitioner, a member of the Smithfield Town Council, a municipal elected position, and a former member of the Smithfield Land Trust, a municipal appointed position, is not prohibited by the Code of Ethics from participating in Town Council discussions and voting on property matters in which she had previously participated and voted as a member of the Smithfield Land Trust. The Petitioner is a member of the Smithfield Town Council (“Town Council”), to which she was elected in November of 2020. Prior to her election to the Town Council, she was a member of the Smithfield Land Trust (“Land Trust”), to which she had been appointed by the Town Council in October of 2019 and on which she served until her election to the Town Council. She explains that the Land Trust serves as an advisory board to the Town Council. The Petitioner states that while serving as Land Trust member, she participated in discussions and votes relative to a piece of property (“property”) located in the Town of Smithfield (“Town” or “Smithfield”) and owned by the Land Trust, which property has been monitored by a curatorship agreement for the last ten years. The Petitioner notes that the curatorship agreement is set to expire in February of 2022; thus, the Land Trust voted, with the Petitioner’s participation, in August of 2020, to recommend to the Town Council that the current curators be given a right of first refusal to purchase the property, and to preserve the property with a conservation easement. The Petitioner represents that these Land Trust recommendations are now scheduled for review and approval before the Town Council. The Petitioner states that she has no interest in any real estate that abuts the subject property, and that neither she nor any person within her family, her business associates, or her employer would otherwise be directly financially impacted by any of the above-cited Town Council decisions relative to the property. She adds that she has no familial, business or employment relationship with the curators of the property. Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether the Code of Ethics prohibits her participation in Town Council discussions and voting relative to the matters described above and in which she previously participated and voted as a Land Trust member. 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). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7). A business is defined as “a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, trust or any other entity recognized in law through which business for profit or not for profit is conducted.” Section 36-14-2(2). The Ethics Commission has consistently opined that a public official is not prohibited by the Code of Ethics from voting on a matter in one forum and then voting on the same matter in another forum due to holding two public positions, provided that the above-cited provisions of the Code of Ethics are not otherwise implicated, and has considered similar fact patterns in cases where a public official held dual public roles. In Advisory Opinion 2002-1, for example, a member of the Coastal Resources Management Council (“CRMC”), who simultaneously served on the Newport Waterfront Commission (“NWC”), questioned whether he had to recuse from the CRMC’s consideration of matters previously reviewed by the NWC. The Ethics Commission opined that, generally, the petitioner could participate in the CRMC’s review of matters previously reviewed by the NWC, given that he would not receive any personal benefit, financial or otherwise, by or because of any official activity he might take as a CRMC member. The Ethics Commission further advised the petitioner that, in the event that any matters before the CRMC or the NWC might financially impact property owned by the petitioner and/or his family member, or otherwise implicate their financial interests, the Code of Ethics required him to recuse from participation and vote on such matters. Similarly, in Advisory Opinion 2011-29, the Ethics Commission opined that a member of the Portsmouth Planning Board, who was also a civil engineer for the Rhode Island Department of Transportation (“DOT”), could participate in and vote on a development proposal pending before the Portsmouth Planning Board, notwithstanding that in her capacity as a DOT engineer she had reviewed the same property to ensure that the state’s property interests were protected. There, the petitioner represented that neither she nor anyone in her family was associated with the proposal applicant, and that she was not an abutter to the property in question. Therefore, there was no presumption of financial benefit or detriment to the petitioner by or because of any official activity she would be undertaking as a Portsmouth Planning Board member. In addition to focusing on the absence of a financial impact on a public official or his/her family member, business associate or employer, in circumstances similar to the ones presented in the instant matter, the Ethics Commission had also indicated that the Code of Ethics does not consider a public body to be a “business” or the relationship between a public official and a public body to be that of business associates. In Advisory opinion 2007-14, for example, the Ethics Commission opined that a member of the North Kingstown Town Council, who was also a member of the Quonset Development Corporation (“QDC”), both public bodies, could participate in and vote on a development proposal pending before the QDC even though he had previously considered and voted on the same matter when it was before the Town Council. That petitioner was not required to recuse from the QDC review of the development proposal by reason of his status as a member of the North Kingstown Town Council because, while the Code of Ethics would have prohibited the petitioner from making decisions as a member of the QDC that would financially impact any business associate or any business by which he was employed or which he represented, neither the Town Council nor the QDC were considered “businesses,” nor “business associates” with their members, under the Code of Ethics. See also A.O. 2015-27 (opining that the Interim Town Manager for the Town of Westerly was not prohibited by the Code of Ethics from participating in the Town’s review of a non-profit entity’s development proposal that might involve her public employer, the Community College of Rhode Island); A.O. 2002-55 (opining that the term “business” as used in the Code of Ethics does not include municipal corporations such as the Town of Richmond). Here, both the Town Council and the Land Trust are public entities and, furthermore, the Petitioner no longer serves on the Land Trust. Additionally, the Petitioner represents that neither she nor her family members, business associates or employer stand to be directly financially impacted by any of the above-cited Town Council decisions relative to the property. Accordingly, based on the Petitioner’s representations, the applicable provisions of the Code of Ethics, and prior advisory opinion issued, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from participating in Town Council matters related to the property, notwithstanding that she had previously participated and voted on those matters as a member of the Land Trust. 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(d) § 36-14-7(a) Related Advisory Opinions: A.O. 2015-27 A.O. 2011-29 A.O. 2007-14 A.O. 2002-55 A.O. 2002-1 Keywords: Dual Public Roles