Advisory Opinion No. 2000-38

Re: Lou Cadwell

QUESTION PRESENTED

The petitioner, a Glocester Conservation Commission member, a municipal appointed position, requests an advisory opinion as to (1) whether he may speak before the Town Council on a matter that the Conservation Commission previously considered if he takes a position different than that approved by the Conservation Commission, and (2) whether before the Town Council or otherwise he may offer public opinions that are different from those taken by the Conservation Commission.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Glocester Conservation Commission member, a municipal appointed position, 1) may speak before the Town Council on a matter that the Conservation Commission previously considered even if he takes a position different than that approved by the Conservation Commission and 2) may offer public opinions that are different from those taken by the Conservation Commission.

Under the Code of Ethics, a public official or employee may not use his position, other than as provided by law, to benefit himself, and may not participate in any matter in which he has an interest in substantial conflict with his public duties. See R.I. Gen. Laws §§ 36-14-5(a), (d). A substantial conflict of interest exists if, for example, an official has reason to believe or expect that he or his employer will derive a direct monetary gain or loss by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a). Additionally, Commission Regulation 7003 provides that a public official may publicly express his or her own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or his or her spouse or dependent child. This exception to the general prohibitions of the Code of Ethics acknowledges that public officials and employees do not forfeit their First Amendment rights by virtue of serving in a public position.

In related advisory opinions, we have advised public officials about their rights under the public forum exception. See A.O. 95-100 (advising minority member of the Planning Board member that he may speak as a private citizen if other nonabutters are allowed to speak before the Zoning Board/Town Council on a matter previously before the Planning Board); A.O. 97-114 (concluding Town Council member could appear before the Zoning Board and speak pursuant to the public forum exception); and A.O. 98-3 (finding that Code of Ethics does not bar Exeter Planning Board member from participating in subsequent discussions and votes on a proposed zone change and amendment to the Exeter Comprehensive Plan relating to “Bald Hill Nursery” despite the fact that he previously voted against the zoning change and amendment and has given public testimony against the proposal before the Town Council in his capacity as a resident).

Therefore, the petitioner may address the Town Council as a private citizen at any meeting so long as he does not receive access or priority not available to any member of the public. This, of course, does not apply to executive sessions, since those meetings are not generally accessible to the general public. We further caution the petitioner that he may not in any way use his position to influence members of the Town Council improperly. (See R.I. Gen. Laws 36-14-5(d) providing that a public official is prohibited from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, a business associate, his employer, or business that he represents.) Whether he may speak on behalf of the Conservation Commission (when he represents either a majority or a minority viewpoint) and whether in so doing he may identify himself as a member of the Conservation Commission before speaking, are questions for the Conservation Commission, the Town Council and the Town Ordinances. Finally, as provided above, the petitioner may state his public opinions as a private citizen to the same extent as any other member of the public regardless of the position taken by the public body of which he is a member.

Code Citations:

36-14-5(a)
36-14-7003

Related Advisory Opinions:

98-3
97-114
96-108
96-23
95-100
92-31

Keywords:

Public Forum Exception