Advisory Opinion No. 2000-33

Re: Gail Durfee

QUESTION PRESENTED

The Petitioner, on behalf of the City of East Providence's Carousel Commission, and Gail Durfee, a member of that Commission, a municipal appointed position, requests an advisory opinion as to 1) whether a member of the Carousel Commission may respond to an advertisement seeking applicants for Manager of the City's Carousel, and accept the position if selected by the Carousel Commission; and, 2) whether the Carousel Commission may select a member to be the manager of the facility they oversee.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission, based on a finding of hardship pursuant to R.I. Gen Laws § 36-14-5(e) and Commission Regulation 36-14-5006 that 1) a member of the Carousel Commission may respond to an advertisement seeking applicants for Manager of the City's Carousel, 2) the Carousel Commission may select a member to be the manager of the facility they oversee, provided that the member resigns her position on the Commission, and 3) that the member of the Commission may accept the position if selected for it by the Carousel Commission. Given two unsuccessful attempts to solicit qualified applicants for the position of Carousel Manager, and a history of attracting and keeping a Manager, the Commission concludes that those difficulties constitute a hardship for the City of East Providence under Section 5(e) and Commission Regulation 5006. In effect, this exempts the current member of the Commission from the one year prohibition against appearing before a board of which an official is or had been a member as well as from the prohibition against accepting employment from a board of which the official had been a member, respectively.

The central issue in this advisory opinion request is whether and under what circumstances members of a municipal board may respond to a employment advertisement posted by their own board. The Code of Ethics provides that a public official may not use in any way his or her public office or confidential information received through his or her holding such office to obtain financial gain for him or herself, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d). The Code also prohibits a public official from representing him or herself before the agency of which he or she is a member and for one year after officially leaving his or her public position. See R.I. Gen. Laws § 36-14-5(e)(1) and (e)(4). Finally, Commission Regulation 36-14-5006 provides that elected and appointed officials may not accept appointments from boards of which they are members if the position carries with it any financial benefit or remuneration. Section 5(e) and Regulation 5006 extend the prohibition for one year after the official terminates his or her membership on a board. Both also provide that this Commission may grant exceptions to this revolving door prohibition upon a finding that adherence with the prohibition would create a substantial hardship for the governmental entity (not for the public official).

Under R.I. Gen. Laws § 36-14-5(e)(1), a public official is prohibited from representing him or herself before any state or municipal agency of which he or she is a member. Section 5(e)(4) extends this prohibition for a period of one year after an official or employee leaves his or her position. Absent an express finding of hardship by this Commission, these prohibitions are absolute. No definition for “hardship” is found in the statute, nor has the Commission promulgated a definition. In considering questions of hardship on a case by case basis, the Commission has focused on factors such as whether the matter to come before an agency involved a vested property right, pre-existing or recently acquired property rights or employment, or whether the matter involved a significant economic impact.

In past opinions, the Commission has found hardship where a request for proposals or a position vacancy does not attract any applicants or when only a few uniquely qualified individuals are available to fill a particular position or apply for a particular contract. See A.O. 95-68; A.O. 94-39; A.O. 90-87. That appears to be the case here. The City of East Providence twice published advertisements for the position of Carousel Manager. No qualified applicants responded. This lack of public response to requests publicly noticed creates a significant hardship for the City and the Carousel Commission. For whatever reasons, economic or otherwise, prospective applicants did not respond. A current member of the Commission is qualified and seeks to fill that void. Based on these circumstances the Commission finds economic hardship warranting an exception to Section 5(e). The same analysis holds true for Regulation 5006, the revolving door prohibition against accepting appointment to a position from your own board. Given that the member may apply for and accept the position, it follows that the Commission may consider her application and make the appointment. Clearly, however, the Commission member should resign her position if and when selected to be the Carousel Manager.

Code Citations:

36-14-5(d)

36-14-5(e)

36-14-5006

Related Advisory Opinions:

98-95

98-46

97-148

97-90

97-66

97-50

95-60

95-68

95-24

94-39

90-87

Keywords:

Revolving Door

Hardship exception

Private employment