Advisory Opinion No. 2000-14

Re: Peter N. Atwood

QUESTION PRESENTED

The petitioner, a member of the Town of Little Compton Harbor Commission, requests an advisory opinion as to whether the Harbor Commission is a "municipal agency" as that term is defined in the Code of Ethics.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Town of Little Compton Harbor Commission is not a "municipal agency" as that term is defined in the Code of Ethics and that, therefore, members of the Harbor Commission need not abide by the statutory and regulatory provisions of the Code of Ethics in carrying out their public duties and responsibilities.

This petitioner and two others, whose requests for advisory opinions are dealt with on this same date, represent that they are members of the Little Compton Harbor Commission, an entity created by a town ordinance. The relevant town ordinance, Chapter IX, Section 9-1 states, inter alia, that the Harbor Commission "shall be the local advisory board concerning the implementation of the Harbor Management Plan and related ordinances." The ordinance goes on to list the powers and duties of the Harbor Commission, which in large part consist of making recommendations to the Town Council. It is the conclusion of the Commission that it does not have independent oversight responsibilities regarding both the Harbor Master and the issuance of mooring permits. In addition, although it is not clear under what duty and responsibility it would fall, the Harbor Commission has been in the process of reviewing a development proposal that would affect the Town's harbor. The petitioner and the other two members who have requested advice have, in varying degrees, involvement with various private entities that are seeking to develop that property.

Section 36-14-2(8)(ii) of the Code of Ethics defines a "municipal agency" as any agency in any branch of municipal government that "exercises governmental functions in other than … an advisory nature." Section 36-14-2002(4)(b) defines "municipal agency " using the same language as statutory Section (2)(8)(ii), except that it requires that an agency exercise governmental functions in other than a "purely advisory nature" in order for the members or employees of such agency to be exempted from the Code of Ethics. Finally, Section 36-14-2001(22), also a regulation promulgated by the Ethics Commission, further states that a "municipal agency" shall also include any entity that:

(a) exercises governmental functions other than in an advisory nature, and expends public funds in excess of $10,000 yearly, or;

(b) those entities whose directors or other governing members are appointed by or through the governing body or highest official of state or municipal government.

Here, the Harbor Commission is called an "advisory body" in the town ordinance that creates it. Representatives of the Town, and of the Harbor Commission, have stated that the Commission has no substantive decision-making authority; rather, those same representatives have stated that the Commission makes recommendations to the Town Council which then has the independent authority to act, whether consistent with or contrary to the recommendation received from the Commission. We conclude that in light of this arrangement that the Harbor Commission is an advisory entity as that term is defined in the Code of Ethics and its members, therefore, need not abide by the statutory and regulatory requirements of the Code of Ethics.

Code Citations:

36-14-2(8)(ii)
36-14-2002(4)(b)
36-14-2001(22)

Related Advisory Opinions:

81-45
82-78
84-49

Keywords:

Advisory Body