Advisory Opinion No. 2021-41

Rhode Island Ethics Commission

Advisory Opinion No. 2021-41

Approved: May 18, 2021

Re: Mario Carreño

QUESTION PRESENTED:

The Petitioner, the School Building Authority Finance Officer for the Rhode Island Department of Education, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from accepting an appointment to fill a vacancy on the Lincoln School Committee, a municipal appointed position, and from then serving simultaneously in both positions.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the School Building Authority Finance Officer for the Rhode Island Department of Education, a state employee position, is not prohibited by the Code of Ethics from accepting an appointment to fill a vacancy on the Town of Lincoln School Committee, a municipal appointed position, and from then serving simultaneously in both positions.

The Petitioner is currently employed by the State of Rhode Island as the School Building Authority Finance Officer for the Rhode Island Department of Education (“RIDE”).  He states that the School Building Authority (“SBA”) is tasked with reviewing Necessity of School Construction applications (“applications”) submitted by school districts throughout the state to determine their eligibility for state aid.  He adds that, at any given time, the SBA is actively reviewing multiple applications for compliance with RIDE School Construction Regulations and the relevant state statutes.  The Petitioner represents that a combination of RIDE and SBA staff members and, in some cases, external consultants, review the applications and consult with the school districts as necessary during the process.  The Petitioner further represents that the SBA recommends the approval of applications to the Commissioner of Education who, in turn, recommends approval of the applications to the Council on Elementary and Secondary Education, which is the final decision-making authority relative to the approval of the applications.  He states that school districts typically apply for state aid once every five years, and that not every SBA staff member reviews every application.

The Petitioner explains that, as the SBA’s Finance Officer, he administers payments to eligible school districts based on the districts’ invoices, which are also reviewed by the Statewide Bond Manager, who is a RIDE consultant; RIDE’s School Construction Coordinator; and members of the Rhode Island Health and Education Building Corporation.  He further states that payments are also reviewed by the respective superintendents, the owner’s project manager, the municipal finance officer, and RIDE’s Senior Finance Officer for Resource Allocation.  The Petitioner explains that each school district’s reimbursement rate is determined on an annual basis pursuant to state statutory requirements.  Upon completion of a district’s school construction project, the Petitioner and either RIDE’s Senior Finance Officer or Educational Facility Planner review the documentation submitted by the district in order to determine the district’s eligibility for reimbursement.  The Petitioner states that the applicants for reimbursement of school construction projects are not in competition with one another, adding that, if a town complies with all of the statutory requirements, the funds will be advanced to the town, regardless of whether three or thirty schools have applied for reimbursement, and that the applications are not prioritized by RIDE.

The Petitioner states that he was recently approached by the Town of Lincoln Town Council (“Town Council”) and the Town of Lincoln School Committee (“School Committee”) and asked whether he might be interested in accepting an appointment to fill a vacancy on the School Committee.[1]  He adds that the position on the School Committee, for which there is a stipend, is expected to be filled by the Town Council on May 18, 2021.  He informs that the School Committee is the agency that approves the submission of Necessity of School Construction applications to RIDE, and that the process involves the organization of a School Building Committee consisting of eight members, including the District Administrator, one to two School Committee members, the Town Financial Manager or Administrator, and several parents.  The School Building Committee meets with representatives from RIDE who then tour the school prior to the submission of the application to RIDE by the School Committee. 

The Petitioner states that he has received permission from RIDE to accept the appointment to the School Committee, subject to an advisory opinion from the Ethics Commission.  He informs that the Town of Lincoln last applied to RIDE for funding in 2017, at which time the application was approved.  He adds that the Town of Lincoln is presently working an application to RIDE.  The Petitioner states that his service on the School Committee would not impair his independence of judgment as to his official duties at RIDE or require or induce him to disclose confidential information acquired by him in the course of those official duties.  He adds that the reverse is true regarding his prospective official duties as a member of the School Committee as to RIDE.  The Petitioner also states that, in the event that he is permitted by the Code of Ethics to accept appointment to the School Committee while he continues his employment with RIDE, out of a desire to avoid even the appearance of impropriety, he will recuse from participation in his capacity as RIDE’s SBA Finance Officer from any matters involving or concerning the Town of Lincoln, and such matters will instead be addressed by the colleagues with whom he would have otherwise collaborated on such matters.  It is in the context of these facts that the Petitioner seeks guidance from the Ethics Commission regarding whether, given his current employment as the SBA Finance Officer for RIDE, the Code of Ethics prohibits him from accepting an appointment to fill a vacancy on the School Committee, and from then serving simultaneously in both positions.

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 or employment in the public interest.  R.I. Gen. Laws § 36-14-5(a).  A public official will have an interest in substantial conflict with his official duties 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 public official, his family member, his business associate, or any business by which he is employed or which he represents.  Section 36-14-7(a).  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).  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).

Further, a public official is prohibited from using his public office or confidential information received through his public office to obtain financial gain for himself, any person within his family, his business associate, or any business by which he is employed or which he represents.  Section 36-14-5(d).  Finally, a public official may not accept other employment that would impair his independence of judgment as to his official duties or require or induce him to disclose confidential information acquired by him in the course of his official duties.  Section 36-14-5(b).

The Ethics Commission has consistently determined that the Code of Ethics does not create an absolute bar against simultaneous service for two different governmental entities.  Rather, the Ethics Commission has opined that determination must be made on a case-by-case basis regarding whether a substantial conflict of interest exists, in either public role, with respect to a petitioner carrying out his duties in the public interest.

As an initial matter, the Ethics Commission has consistently concluded that the Code of Ethics does not consider public entities “businesses” or the relationship between a public official and a public body, such as a state or municipal agency, to be that of “business associates.”  See, e.g., A.O. 2014-23 (opining that neither the Rhode Island Board of Education Council on Elementary and Secondary Education (“CESE”) nor Trinity Academy for the Performing Arts (“TAPA”) was considered a “business” under the Code of Ethics and, therefore, the petitioner’s memberships on CESE and TAPA did not constitute business associations with those bodies).

Additionally, the Ethics Commission has consistently opined that a public official is not prohibited by the Code of Ethics from participating in the matters being addressed in two different forums as a result of holding two public positions, even when a particular matter under consideration during the exercise of the individual’s duties in one public position might impact the other public entity for which the individual also serves. For example, in Advisory Opinion 2011-29, the Ethics Commission opined that a member of the Portsmouth Planning Board, who was also employed as a civil engineer for the Rhode Island Department of Transportation (“RIDOT”), could participate in the Planning Board’s consideration of a development proposal, notwithstanding that in her capacity as a RIDOT-employed engineer the petitioner had been reviewing the same property to ensure that the state’s property interests were protected.  The Ethics Commission reasoned that, because neither the RIDOT nor the Planning Board were considered “businesses” under the Code of Ethics, the “business associate” prohibitions that would have otherwise constrained the petitioner while carrying out her public duties did not applySee alsoA.O. 2015-48 (opining that a member of the Providence School Board was not prohibited by the Code of Ethics from simultaneously serving as the Chief Operating Officer of the Rhode Island Nurses Institute Middle College Charter School (“RINIMC”), nor was he prohibited from participating in School Board actions that directly impacted the charter school because neither the School Board nor the RINIMC was considered to be a “business” under the Code of Ethics and, therefore, neither the petitioner’s membership on the School Board nor his employment with RINIMC constituted a “business association” under the Code of Ethics); A.O. 2015-27 (opining that the Director of Planning, Code Enforcement and Grants Administration for the Town of Westerly, who was also temporarily serving as Interim Town Manager, 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 the Community College of Rhode Island (“CCRI”), notwithstanding that the petitioner was an online adjunct faculty member of CCRI, because neither the Town of Westerly nor CCRI were considered “businesses” and, therefore, the petitioner could not be considered a “business associate” of either the Town of Westerly or CCRI).

Similarly, here, there is no substantial conflict of interest apparent in the Petitioner simultaneously holding the positions of SBA Finance Officer for RIDE and School Committee member, notwithstanding some potential overlap in those public roles.  Neither RIDE (a state agency) nor the School Committee (a municipal agency) is considered a “business entity” under the Code of Ethics.  Therefore, neither the Petitioner’s employment by RIDE, nor his prospective membership on the School Committee, constitutes a “business association” with either of those public bodies under the Code of Ethics.  Accordingly, any impact upon the School Committee by virtue of the Petitioner’s activity as the SBA Finance Officer for RIDE would not be considered impact upon a “business associate” under the Code of Ethics.  The reverse is also true.  Absent some direct financial impact upon himself, any person within his family, his business associate or a private employer as a result of the Petitioner’s actions in either public role, no inherent conflict of interest would preclude such simultaneous service. 

Further, based on the facts as represented by the Petitioner, there is no indication that serving as both the SBA Finance Officer for RIDE and as a member of the Lincoln School Committee would impair his independence of judgment as to his public responsibilities in either position or require him to disclose confidential information acquired by him in the course of his official duties in either role.  The Ethics Commission recognizes and supports the Petitioner’s choice to recuse from participation in the review of Necessity of School Construction Applications submitted by the Town of Lincoln to RIDE, given that such participation, while not precluded by the Code of Ethics, might convey a potential appearance of impropriety.  

Absent any other relevant fact that would implicate the Code of Ethics, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from simultaneously serving as the SBA Finance Officer for RIDE and as a member of the Town of Lincoln School Committee.  The Petitioner is advised that, if any matters should come before him as he is carrying out his duties in either of his public roles that may present any other potential conflict of interest that is not otherwise contemplated in this advisory opinion, or circumstances in which it is reasonably foreseeable that there will be a financial impact upon the Petitioner personally, any person within his family, his business associate, or a private employer, he should either request further advice from the Ethics Commission or exercise the recusal provision found at section 36-14-6.

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(b)   
§ 36-14-5(d)
§ 36-14-6        
§ 36-14-7(a)   

Related Advisory Opinions:              
A.O. 2015-48 
A.O. 2015-27
A.O. 2014-23
A.O. 2011-29

Keywords:
Dual Public Roles