Advisory Opinion No. 2021-52

Rhode Island Ethics Commission

Advisory Opinion No. 2021-52

Approved Date:  August 17, 2021

Re:  William J. Fazioli

QUESTION PRESENTED:

The Petitioner, the Chairperson of the East Providence Waterfront District Commission, a quasi-public state appointed position, who also serves as the Director of the Department of Planning and Economic Development for the City of East Providence, a municipal employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits his simultaneous service in both positions. 

RESPONSE:

It is the opinion of the Rhode island Ethics Commission that the Petitioner, the Chairperson of the East Providence Waterfront District Commission, a quasi-public state appointed position, who also serves as the Director of the Department of Planning and Economic Development for the City of East Providence, a municipal employee position, is not prohibited by the Code of Ethics from simultaneously serving in both positions. 

The Petitioner is the Chairperson of the East Providence Waterfront District Commission (“Waterfront Commission”).  He states that he has served on the Waterfront Commission since his appointment by the East Providence City Council (“City Council”) in 2006, and that he was appointed Chairperson by the Governor in 2018.  The Petitioner represents that this position does not carry any remuneration and his service on the Waterfront Commission is purely voluntary.  The Petitioner further represents that the Waterfront Commission is a quasi-public state agency[1] that was created in 2003 by the General Assembly to “create a State-local-private sector partnership to plan, implement, administer, and oversee the development of the East Providence Water District and [] to authorize, provide for, and facilitate the consolidated exercise of development and redevelopment powers existing at the State and local levels.”  According to the enabling legislation, a copy of which is attached to the Petitioner’s request for an advisory opinion, the Waterfront Commission is comprised of nineteen members.  The Petitioner represents that the Waterfront Commission has exclusive jurisdiction over the review and approval of all private and public sector development plans relative to properties located in the City of East Providence’s (“City” or “East Providence”) Waterfront District.

Additionally, the Petitioner is employed as the Director of the Department of Planning and Economic Development (“Director”) for the City.  He represents that he has served in that position since his appointment by the Mayor of East Providence in 2019 and that this is his primary source of income.  The Petitioner explains that the duties and responsibilities of the Department of Planning and Economic Development (“Department”) and those of the Director are set forth in Section 2-178 of the City’s Code of Ordinances (“Section 2-178”), a copy of which is attached to the Petitioner’s request for an advisory opinion.  According to Section 2-178, the Department is comprised of two divisions: the division of planning and the division of economic development.  The division of planning creates, maintains, and implements all neighborhood, redevelopment and special area plans, and oversees environmental planning, historic preservation planning, and transportation planning and transit initiatives.  The division of economic development is responsible for identifying and promoting development opportunities for business growth and development in the City.  This division is also responsible for disbursing and monitoring the expenditure of federal community development funding.  Section 2-178 identifies the Director as the administrative head of the Department and his duties include, but are not limited to, the following: working with the Division of Building Inspection for the purpose of coordinating permitting for developments from the design phase to final inspection; working with the Director of Finance and other members of the Finance Department as may be necessary for the purpose of maximizing economic development initiatives in the City and to promote a long-term financial well-being of the City; and serving as the technical advisor to the Planning Board. 

The Petitioner states that his duties as Director and those of Chairperson of the Waterfront Commission are separate and distinct.  He represents that the Waterfront Commission has the sole decision-making authority over certain properties located in the City’s Waterfront District.  He explains that there are occasions when the Waterfront Commission may seek the opinion of the East Providence Planning Board (“Planning Board”) regarding whether a certain project is consistent with the City’s Comprehensive Plan.  In those circumstances, the Planning Board may ask the Department for a staff report on the matter.  The Petitioner states that the staff report does not review the merits of an application, but only whether a project is consistent with the City’s Comprehensive Plan.  The Petitioner represents that to the extent that his input as Director is sought on a staff report addressing a matter pending before the Waterfront Commission he will recuse.  The Petitioner states that such report will be prepared by either the Chief City Planner or the Principal Planner.  Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether the Code of Ethics permits him to continue serving as both the Chairperson of the Waterfront Commission and the Director of the Department of Planning and Economic Development.    

Under the Code of Ethics, a public official or employee 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 or employee will have an interest that is in substantial conflict with the proper discharge of his official duties if he has reason to believe or expect that a direct monetary gain or a direct monetary loss will accrue, by virtue of his official activity, to the official himself, his family member, his business associate, or any business by which the public official is employed or which he represents.  Section 36-14-7(a).  A public official or employee is also prohibited from accepting 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).  Additionally, section 36-14-5(d) prohibits a public official or employee from using his position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, his family member, his business associate, or any business by which he is employed or which he represents.

In prior advisory opinions, the Ethics Commission has consistently concluded that the Code of Ethics does not create an absolute bar against a person’s simultaneous service in different governmental entities, even if they are within the same municipality.  Rather, the Ethics Commission has determined that a matter by matter evaluation and determination must be made as to whether substantial conflicts of interest exist with respect to the person carrying out his or her duties in the public interest.  In particular, the Ethics Commission has considered whether a person’s service on either entity would result in an impermissible financial impact and whether a person’s independence of judgment would be impaired as to his or her public responsibilities.  In Advisory Opinion 2005-45, for example, the Ethics Commission opined that the Chairman of the East Providence Planning Board could simultaneously serve as a member of the East Providence Waterfront Special Development District Commission, having determined that absent some direct financial nexus between the petitioner’s two public roles, no inherent conflict of interest would preclude his simultaneous service.  The Ethics Commission had also factored in the Petitioner’s representation that he would recuse himself from participating in any matter before the Planning Board related to the Waterfront Commission, and vice versa, and that he would likewise recuse himself from participation in actions taken by both the Planning Board and the Waterfront Commission regarding advisory opinions sought regarding the Waterfront Commission.  See also A.O. 2011-18 (opining that the Chief of Staff for the Town of Johnston was not prohibited by the Code of Ethics from continuing to serve as the Chairman of the Board of Commissioners for the Rhode Island Resource Recovery Corporation absent some direct financial nexus between the petitioner’s two duties).

Furthermore, the Ethics Commission acknowledges and commends the Petitioner’s readiness to recuse, as Director, from matters pending before the Waterfront Commission.  However, the Ethics Commission has on several occasions opined that a public official is not necessarily 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 roles.  The Ethics Commission has allowed public officials to do so in circumstances where there is no financial impact on the public official, his/her family member, his/her business associate or employer.  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.[2]”  See A.O. 2018-40 (opining that a member of the Rhode Island Scenic Roadways Board (“SRB”), a public entity, who also served as the Executive Director of the East Providence Waterfront Special Development District Commission (“Water Commission”), a quasi-public entity, was not prohibited by the Code of Ethics from participating in the SRB’s discussions and voting to approve aesthetic development along Veterans Memorial Parkway, notwithstanding that the Waterfront Commission was responsible for approving structural developments in areas that abut Veterans Memorial Parkway, because neither the SRB nor the Waterfront Commission were considered to be “businesses” or “business associates” of the petitioner); A.O. 2007-13 (opining that the Director of the Quonset Development Corporation (“QDC”), who was also a member of the North Kingstown Town Council, could participate in QDC’s decisions and vote on a development proposal within North Kingstown pending before the QDC because, while the Code of Ethics would prohibit 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 represented, the Town was not considered under the Code of Ethics to be a “business” or a “business associate” of the petitioner).  However, each matter has to be reviewed based on its particular facts. 

Here, the Petitioner’s public duties as described above appear to be separate and distinct.  Absent some direct financial nexus between the Petitioner’s two public roles, no inherent conflict of interest would preclude his simultaneous service.  Furthermore, based on the Petitioner’s representations, he will recuse from any discussions involving staff reports relative to matters pending before the Waterfront Commission.  Finally, there is no indication that serving in either one of the above-described public capacities would impair the Petitioner’s independence of judgment as to his public responsibilities in his other public role. 

Accordingly, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from simultaneously serving in both positions.  The Petitioner is advised, however, that if any particular matter should arise in either of his public positions that would financially impact the Petitioner, any person within his family, or his business associate, then the Petitioner must recuse from participation in such matter or seek further guidance from the Ethics Commission.  Notice of recusal must be filed consistent with 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. 2018-40
A.O. 2011-18
A.O. 2007-13
A.O. 2005-45

Keywords: 
Dual Public Roles