Advisory Opinion No. 2000-37

Re: George Gempp

QUESTION PRESENTED

The petitioner, a member of the Town of Warren Harbor Management Commission, a municipal appointed position, requests an advisory opinion as to whether he must file a financial disclosure form.

RESPONSE

The Town Council appoints the members of the Warren Harbor Management Commission. The Warren Harbor Management Commission’s powers are set forth in Article IV, Section 10-61 of the Warren Town Code. Its powers include, inter alia, recommending regulations relating to moorings and fees, races, water-skiing, and houseboats, recommending penalties for violations of the regulations, and recommending a job description for the harbor master. Additionally, the Warren Harbor Management Commission sits with the town council as a board of appeals to hear the appeal of harbor master or staff decisions. Appeals of Commission decisions may be made to the Town Council.

The Commission has found that other boards and commissions exercising similar authority are not advisory in nature and that they, therefore, must comply with the Code of Ethics, including filing financial disclosure statements. See A.O. 97-69(advising member of the State Medical Examiners Commission that he is required to file a personal financial disclosure statement since the Commission hears and determines appeals to decisions by the chief medical examiners); A.O. 97-60(concluding Rhode Island Historical Records Advisory Board member is required to file a personal financial statement under the Code of Ethics since he was appointed by the governor and not solely advisory in nature since “… [although the] Board's function clearly includes an advisory component, and it does not have final decision-making authority, its role in reviewing and recommending actions to the Commission constitutes sufficient subjective involvement in the policy-making area to warrant the categories of disclosure mandated by the General Assembly in the Code of Ethics”) A.O. 97-67(finding that Woonsocket Juvenile Hearing Board member who also is a member of the Governor's Juvenile Justice Reform Task Force and Governor's Juvenile Justice Advisory Committee must file a personal financial disclosure form).

Other advisory opinions issued by the Ethics Commission, although not addressing filing of a financial disclosure form, concern the applicability of the Code of Ethics on a governmental body that is not strictly advisory in nature. See A.O. 81-45(concluding that the Tiverton Harbor Advisory Commission with authority to prescribe regulations and issue licenses is not advisory in nature) A.O. 83-33(confirming advisory opinion 77-279, advising East Providence Planning Board member that the Planning Board is not strictly advisory in nature and subject to the Code of Ethics); A.O. 95-43(finding that Advisory Council to the Assistive Technology Access Partnership falls under the jurisdiction of this Commission since its recommendations to Office of Rehabilitation Services regarding responses to Requests for Proposals, monitoring the effectiveness of programs funded under the grant, making recommendations on the kinds of future programs to be funded by the Office of Rehabilitative Services, advocating for systematic changes in state law and policy to increase services and funding for assistive technology drive the decision-making process. Additionally, the Commission’s budget, though federally funded, is allocated and controlled through the State's Department of Human Services, and is used to pay for services needed by the Council and its members in order to carry out their mandate); A.O. 99-8(concluding that Galilee lease committee within DEM is covered by the Code of Ethics although it makes recommendations to DEM and to the State Properties Committee since it plays a substantive role in which businesses would get leases on certain property in Galilee to the exclusion of others).

Also, while not specifically addressing the “advisory” issue, the Commission has in numerous other circumstances required appointed public officials to recuse on matters before their board. Given the advice, one can conclude that the Commission determined that these entities were not advisory in nature. See A.O. 97-38(advising Burrillville Budget Board member to recuse from participation on budgets of departments that he interacts with in his private employment as a contractor/builder and developer although Board reviews budgetary requests, collates, and recommends the final budget to the Town Council); A.O. 99-35(concluding that members of the Planning Committee of Governor’s Justice Commission must not participate although it is not the ultimate decisionmaker as to subgrant awards, since it is an essential step in the process that narrows and directs where funding will be allocated); A.O. 97-7(advising that a member of the Individual Sewage Disposal System Technical Review Committee within DEM must recuse on particular technical applications for approval given his ongoing business interest); and A.O. 99-11(finding that a Glen Farm Authority member must recuse on “vote of confidence” for lease with subcontractor although Town Council must approve the lease, citing Celona v. Rhode Island Ethics Commission, 544 A2d 582, 586 (R.I. 1986)).

Conversely, the Ethics Commission has previously found that certain boards or commissions are solely advisory in nature and need not file a financial disclosure form or comply with the substantive dictates of the Code of Ethics. A.O. 98-36(advising a member of the Special Legislative Commission to Review Statewide Recycling Efforts and to Make Recommendations Therefor is not required to file a personal financial disclosure statement); A.O. 2000-13(concluding a Little Compton Harbor Advisory Commission member not covered by the Code of Ethics); A.O. 82-5(finding Newport Waterfront Commission is not a municipal agency since it does not expend public funds and serves as strictly advisory body to the Town Council).

In this matter, the petitioner asks whether he, as a member of the Town of Warren Harbor Management Commission, is required to file a personal financial disclosure statement. Here, the Warren Harbor Management Commission, in addition to its policymaking role in making recommendations to the Town Council, also serves as an appellate body, affecting the rights of persons aggrieved by decisions of the harbormaster or staff. Such actions are not “purely advisory” in nature. Therefore, the Warren Harbor Management Commission is a “municipal agency” and the petitioner is a “municipal appointed official” within the meaning of Code of Ethics and is required to file a financial disclosure statement.

Code Citations:

36-14-2(8),(9)

36-14-2001(22)

36-14-2002(4)(b)

36-14-4

36-14-16

Related Advisory Opinions:

2000-15

2000-14

2000-13

99-35

99-11

99-8

98-36

97-68

97-67

97-60

97-38

97-7

95-43

82-5

Keywords:

Advisory body

Financial disclosure