Advisory Opinion No. 2000-48

Re: Robert Russell

QUESTION PRESENTED

The petitioner, a member of the City of Warwick Harbor Management Commission, a municipal appointed position, requests an advisory opinion as to whether he is required to file a financial disclosure form.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the City of Warwick Harbor Management Commission, a municipal appointed position, is required to file a financial disclosure form in that a) he is appointed by the Town Council and b) the Harbor Management Commission is not purely advisory in nature.

The Code of Ethics requires all state and municipal elected and appointed officials to file annual financial statements with the Ethics Commission. See R.I. Gen. Laws § 36-14-16. The General Assembly has deemed that if an official is appointed by the highest governing body of the state or municipality or for a term of office and exercises governmental functions other than in an advisory nature, the public official is required to file a personal financial statement pursuant to the Code of Ethics. See R.I. Gen. Laws § 36-14-2(9).

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." Commission Regulation 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, Commission Regulation 36-14-2001(22) 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.

The Mayor appoints the members of the Warwick Harbor Management Commission to a five-year term. The Harbor Management Commission’s powers are set forth in Section 24-5 of the Warwick Code. Its powers include, inter alia, recommending regulations, fees and penalties to the department of parks and recreation relating to the city harbor management plan; assisting in preparing an annual budget and capital improvement program; review and revising the harbor management plan for city council and CRMC approval. Additionally, the Warwick Harbor Management Commission “…as a board of appeals to hear any person aggrieved by any decision, act or failure to act by the department of parks and recreation or the chief harbormaster in the enforcement of this chapter and any rules and regulations adopted by the city pursuant to this chapter.”

This Commission has found that other boards and commissions exercising similar authority are not advisory in nature and that their members, 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 was 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 wass 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 was required to 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 to 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 the DEM is covered by the Code of Ethics although it makes recommendations to the 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 boards. Given the advice in those instances, we conclude that the Commission implicitly 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 should 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 the DEM should recuse on particular technical applications for approval given his ongoing business interest); and A.O. 99-11(finding that a Glen Farm Authority member should 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 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 that a Little Compton Harbor Advisory Commission member was not covered by the Code of Ethics); A.O. 82-5(finding that 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 Warwick Harbor Management Commission, is required to file a personal financial disclosure statement. Here, the Warwick Harbor Management Commission, in addition to its policymaking role in making recommendations, also serves as an appellate body, affecting the rights of persons aggrieved by decisions of the department of parks and recreation and harbormaster or staff. Such actions are not “purely advisory” in nature. Therefore, the Warwick 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