Advisory Opinion No. 2000-12

Re: Timothy Kirwan

QUESTION PRESENTED

The petitioner, a board member of the Providence Convention Authority (PCA), a state appointed position, whose private employment is as the General Manager at the Westin Hotel in Providence, requests as advisory opinion as to whether, in his capacity as a PCA Board member, he may vote on matters or proposals that potentially could result in or involve the expenditure of funds at, or for the benefit of, the Westin, given that his appointment to the Convention Authority is as the statutorily mandated representative of the Rhode Island Convention Center Authority (RICCA), which owns the Westin.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a board member of the Providence Convention Authority (PCA), a state appointed position, whose private employment is as the General Manager at the Westin Hotel in Providence, generally may not vote as a member of the PCA Board on matters or proposals that potentially could result in or involve the expenditure of funds at, or for the benefit of, the Westin or the Rhode Island Convention Center Authority (RICCA), which owns the Westin.

Pursuant to the Code of Ethics, R.I. Gen. Laws § 36-14-2(9), the petitioner is a State appointed official since he is a member of an agency by virtue of a State statute. Since the petitioner is a State appointed official, he is covered by the Code of Ethics. The Code of Ethics provides that the petitioner shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction which is in substantial conflict with the proper discharge of his duties in the public interest. A substantial conflict of interest occurs if the petitioner has reason to believe or expect that he or any family member or business associate, or any business by which he is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, the Code provides that the petitioner shall not accept other employment that will either impair his independence of judgment as to his official duties or induce him to disclose confidential information acquired by him in the course of and by reason of his official duties. R.I. Gen. Laws § 36-14-5(b). This does not, however, preclude his continued employment at the Westin. Further, the Code states that the petitioner may not use his office for pecuniary gain, other than that provided for by law, for himself, his family, his employer, a business associate, or a business that he represents. R.I. Gen. Laws § 36-14-5(d).

The petitioner represents that the PCA is funded by its receipt of a portion of the proceeds generated by the state hotel tax. The PCA's Board includes, as mandated by State statute, representatives from the RICCA, the Omni Biltmore Hotel, the Day's Hotel, the Holiday Inn of Providence, the Providence Mariott Inn, the Chair of the Providence Convention and Visitors Bureau as well as five members appointed by the Mayor of Providence. The petitioner is the designated representative of the RICCA on the Authority’s Board. The purpose of the Authority is to promote tourism, conventions, exhibitions, banquets and like events in Providence. In that role the petitioner presumably will be in a position to consider matters that could result in the expenditure of funds at, or for the benefit of, the RICCA, the Westin and/or the four other hotels represented on the Board.

The petitioner points out in his requesting letter that the statutory purpose of the PCA specifically contemplates that matters involving the hotel by which he is employed, as well as matters involving the other represented hotels, will be an important part of the PCA's business. While his observation is correct, that clear statutory purpose cannot act as a vehicle to circumvent the constitutional and statutory requirements of the State’s Code of Ethics. Additionally, we believe that the goals and purposes of both the statute creating the PCA and of the Code of Ethics with regard to Board members can be met. First, the provisions do not facially conflict nor is meeting the requirements of both mutually exclusive. Second, representatives of the RICCA and of the named Providence hotels may serve on the Board without causing a per se violation of the Code of Ethics. The representatives of the hotels, or of other parties who might be the beneficiaries of actions taken by the PCA, are not prohibited from serving on the PCA's Board. Rather, they merely are prohibited from participating in matters as Board members that reasonably and directly could affect the financial fortunes of their employers. The fact that the petitioner may not participate in matters affecting the Westin Hotel or the RICCA, or that representatives of other hotels or entities may not participate in matters affecting their employers of business associates, does not render the PCA incapable of taking action. Rather, it merely assures that any action taken will be done so without the involvement of an entity that would be the direct financial beneficiary of the action. This does not preclude the petitioner from participating in matters that have the general aim of promoting tourism in Providence, even though the petitioner expects that such general promotion may have the residual effect of benefiting the RICCA and/or the Westin Hotel. Rather, the petitioner is precluded from acting only where the matter at issue would confer a direct financial benefit on the Westin or the RICCA, whether through specific promotion or otherwise. This rationale also would apply to other members of the PCA Board with respect to matters that would confer a direct financial benefit on their employers.

Finally, we remind the petitioner that recusals must be in accordance with Section 6 of the Code of Ethics, which require him to submit his statements of conflict of interest to the Authority and sending a copy to the Ethics Commission.

Code Citations:

36-14-2(9)
36-14-5(a)
36-14-5(b)
36-14-5(d)
36-14-6
36-14-7(a)

Related Advisory Opinions:

98-121
99-9
94-24

Keywords:

Private Employment