Advisory Opinion No. 2021-43

Rhode Island Ethics Commission

Advisory Opinion No. 2021-43

Approved: June 8, 2021

Re:  Michael Crawley

QUESTION PRESENTED:

The Petitioner, the Director of the Cumberland Parks and Recreation Department, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from purchasing land in the Commonwealth of Massachusetts with two individuals in connection with a new business opportunity, given that those individuals annually organize and sponsor a Halloween event at a park owned by the Town of Cumberland and what restrictions, if any, the Code of Ethics would place upon him in carrying out his public duties under these circumstances.    

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Director of the Cumberland Parks and Recreation Department, a municipal appointed position, is not prohibited by the Code of Ethics from purchasing land in the Commonwealth of Massachusetts with two individuals in connection with a new business opportunity, notwithstanding that those individuals annually organize and sponsor a Halloween event at a park owned by the Town of Cumberland, provided that the Petitioner follows the guidance of the Ethics Commission provided herein.  

The Petitioner is the Director of the Parks and Recreation Department (“Department”) in the Town of Cumberland (“Town” or “Cumberland”) and has served in that position for the past 13 years.  The Petitioner represents that, in his capacity as Department Director, he is responsible for overseeing all events held in Town parks, including approval of applications to rent any of the Town parks.  He informs that approval of an application to rent a Town park is conditioned upon a park’s availability on the date requested and that the event planned is permitted under the Town Charter and/or the Town Ordinances.  

The Petitioner states that he would like to purchase a large piece of property in Palmer, Massachusetts (“land”) in partnership with two other individuals for the purpose of organizing various entertainment events.  He further states that, for the past six years, the two individuals have organized and sponsored a Halloween event at Diamond Hill Park, which is owned by the Town.  The Petitioner explains that, each year, the individuals apply to the Department to reserve four successive weekends during which to rent the park to hold the Halloween event.[1]  The Petitioner states that his partnership with the two individuals relative to the purchase of the land will be organized in an entity that is separate and apart from the entity formed by the two individuals for purposes of organizing and sponsoring the Halloween event in Cumberland.  The Petitioner represents that he will not be involved with or share in the proceeds from the Halloween event in Cumberland.  Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether he may purchase the land and what restrictions, if any, the Code of Ethics would place upon him in carrying out his public duties as a Director.     

No person subject to the Code of Ethics shall engage in any business, employment, transaction or professional activity 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 an 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 or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity.  Section 36-14-7(a).  Additionally, the Code of Ethics prohibits a public official or employee 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 business by which he is employed or which he represents.  Section 36-14-5(d).  The Code of Ethics further provides that a public official or employee shall 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 and by reason of his official duties.  Section 36-14-5(b).

A public official or employee must also 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 5(e)(1) - (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 year thereafter.  Section 5(e)(4).  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).

In the past, the Ethics Commission has opined that public officials and employees are not inherently prohibited from holding employment that is secondary to their primary public employment or position.  The Ethics Commission has consistently allowed public officials and employees to engage in secondary employment that is outside of their official public jurisdiction 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.  See, e.g., A.O. 2018-9 (opining that a Probation and Parole Supervisor for the Rhode Island Department of Corrections (“DOC”) was not prohibited by the Code of Ethics from working as a part-time counselor with a private psychiatric hospital in Massachusetts, given that there was no evidence that such private employment would either impair his independence of judgement or create an interest in substantial conflict with his public duties at the DOC, and provided that all 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 at the DOC), A.O. 2001-46 (opining that a Bristol Police Officer assigned to the Detective Division could assist a private investigator in reviewing a criminal matter under the jurisdiction of the Massachusetts District Attorney’s Office, provided that he had no involvement with matters subject to the Bristol Police Department’s official jurisdiction). 

The Ethics Commission examines several factors when considering potential conflicts 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.

In the present matter, based on all of the representations above, it is the opinion of the Ethics Commission that there is no evidence that the Petitioner’s new private venture in Massachusetts would either impair his independence of judgement or create an interest in substantial conflict with his public duties at the Department.  Accordingly, the Petitioner is not prohibited from purchasing the land in Massachusetts in partnership with the two individuals, provided that such endeavor is performed on his own time and without the use of public resources or confidential information obtained as part of his municipal employment at the Department. Nor may the Petitioner use his public position to promote his private business or list his public position as part of the advertisement of his private business.  The Petitioner is reminded that he may not solicit clients for his business in Massachusetts during the hours of his public employment or from any of his subordinates in his public position. 

Furthermore, the Petitioner will become a “business associate” of the two individuals if he goes into business partnership with them to purchase the land.  Therefore, upon entering into a business association or partnership with the two individuals, which includes the period during which negotiations for the purchase of the land are taking place, the Petitioner is required by the Code of Ethics to recuse from taking official action, including discussions and/or decision-making, on any matter, including, but not limited to, the approval of the park rental application for the Halloween event in Cumberland and/or post-approval regulation or enforcement, that is likely to result in a direct financial benefit or detriment to the two individuals, or their joint business venture with the Petitioner, or in which the two individuals appear or present evidence or arguments before him.  Recusal shall be consistent with section 36-14-6.  

Given that the Ethics Commission cannot anticipate any and all, if any, future interactions between the Petitioner in his capacity as Department Director and the two individuals, the Petitioner is strongly encouraged to seek further advice from the Ethics Commission whether recusal is required in specific instances.

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(3)
§ 36-14-2(7)
§ 36-14-5(a)
§ 36-14-5(b)
§ 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. 2018-9
A.O. 2001-46
GCA 2009-4

Keywords: 
Business Associates

[1] The Petitioner represents that to the extent that he is required to recuse from review of the two individuals’ park rental application, he could either refer such application for review by the Parks and Recreation Commission, over which he has no appointing authority, or the two individuals could go directly to the Town Clerk Office and seek an entertainment license, the issuance of which will be considered directly by the Town Council, bypassing the Petitioner.