Advisory Opinion No. 2000-34

Re: Warwick City Council

QUESTION PRESENTED

The Warwick City Solicitor requests an advisory opinion on behalf of the petitioners, Warwick City Councilors, municipal elected positions, as to whether they also may serve on the Warwick Station Redevelopment Agency’s negotiating team, given that the Agency may become involved with zoning and property tax issues which would require official action by the Council.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioners, Warwick City Councilors, municipal elected positions, from also serving on the Warwick Station Redevelopment Agency’s negotiating team.

The petitioners advise that the Warwick City Council established a Warwick Station Redevelopment Agency with jurisdiction over a defined area between T.F. Green Airport and a proposed new train station. The Agency has powers to redevelop the area, including the power of eminent domain. The petitioners represent that the Council amended the zoning ordinance to create two new zoning districts in that area, but that any further amendments would require Council approval. The Agency has proposed that an eight-member negotiating team meet with prospective developers and negotiate the terms of a development agreement for the area, subject to Agency approval. The team would be responsible for interpreting and representing City policies with regard to proposed development of the area. The petitioners indicate that the team would consist of two Council members, two Agency members, legal counsel to the Agency, two members of the City’s administration and a representative of the Rhode Island Economic Development Corporation. The negotiating team may become involved with issues relative to zoning and property taxes in the area, which would require subsequent action by the Council.

The Code of Ethics provides, inter alia, that a public official may not participate in matters where he/she has a substantial conflict of interest, use his/her office for pecuniary gain, or accept employment that would impair his/her independence of judgment as to his official duties. See R.I. Gen. Laws § 36-14-5(a), 5(b), 5(d), 7(a). A substantial conflict of interest exists if the public official has reason to believe or expect that he/she, or a business associate, or any business by which he/she is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his/her official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a).

No provision in the Code of Ethics prohibits voting in one forum and then in another. In an analogous advisory opinion, the Commission concluded that the Code of Ethics did not prohibit a member of the Pawtucket Water Supply Board from also serving as an elected City Councilor in that municipality. A.O. 99-110. There, the Council member served on the Water Supply Board as a representative of the City Council. That the Council member would have the ability to vote on the same issues as a member of both entities did not act as a bar to such simultaneous service.

See also, A.O. 97-94 (finding that a Block Island Town Councilor who sat on a Health Services Board of Directors due to the Town’s financial interest in the facility could participate in matters directly or indirectly affecting the Block Island Health Services, Inc., since there was no personal financial incentive for Council members to either serve on the Board or in the health services business generally.

Although there may be overlap in the petitioners’ public roles, a substantial conflict of interest is not apparent by the petitioners holding these positions which may only involve the other public entity. Sections 5(a) and 5(d) of the Code do not create an absolute bar to simultaneous service as appointed members of the Agency’s negotiating team. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out their official duties in the public interest as members of the City Council. In order for a substantial conflict of interest to exist, there must be some evidence of a financial nexus between the petitioners’ public positions and their private financial interests.

Here, the petitioners would serve on the Agency’s negotiating team as representatives of the City Council. As such, their function would be to serve the public interest rather than to represent some private financial interest. Given that they will not receive any personal benefit, financial or otherwise, by or because of any official activity they may take in relation to the Agency, a substantial conflict of interest as defined by the Code of Ethics is not present. However, the Commission cautions that, in the event that any Agency matters, such as zoning and property tax issues, may impact property owned by the petitioners and/or their family members, the Code requires them to recuse from participation and vote on such matters, both as Councilors and as members of the Agency’s negotiating team. Notices of recusal should be filed with the City of Warwick and the Ethics Commission in accordance with R.I. Gen. Laws § 35-14-6.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-6

36-14-7(a)

Related Advisory Opinions:

99-110

99-57

99-22

98-129

98-75

97-145

97-94

96-26

96-9

Keywords:

Dual public roles