Advisory Opinion No. 2000-65

Re: Richard Kenyon

QUESTION PRESENTED

The petitioner, an Exeter Planning Board member, a municipal appointed position, requests an advisory opinion as to whether he may participate in matters concerning the Ladd Center given that a person who has an ownership interest in the company that employs the petitioner is part of a group expressing concerns about environmental aspects of the Ladd Center project.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, an Exeter Planning Board member, a municipal appointed position, may participate in matters concerning the Ladd Center notwithstanding the fact that a person who has an ownership interest in the company that employs the petitioner may have environmental concerns about certain aspects of the Ladd Center project.

The petitioner advises that the Exeter Planning Board is participating in matters concerning the development of the Ladd Center. The petitioner is employed by SCOBCO Assoc. One of the persons having an ownership interest in SCOBCO has joined a group of Exeter citizens, including the Nature Conservancy, to hire an attorney to follow the development at the Ladd Center and has also sent a latter to the Town Council expressing her concern about a golf course being placed on the Queen’s River Aquifer at the Ladd Center due to the potential use of pesticides. The petitioner advises that SCOBCO is not an abutter to the Ladd Center and is more than one mile away. Additionally, the petitioner advises that the aquifer is not currently in use, but could be used in the future for Exeter residents.

Under the Code of Ethics, the petitioner may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. Substantial conflict is defined as a “direct monetary gain or a direct monetary loss” that accrues, by virtue of the public official’s activity, to that individual, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). He may not accept outside employment that will impair his independence of judgment as to his official duties or responsibilities. See R.I. Gen. Laws § 36-14-5(b). Additionally, the Code provides that a public official or employee may not use his office to obtain financial gain other than as provided by law. See R.I. Gen. Laws § 36-14-5(d).

In this matter, the petitioner’s employer, SCOBCO, has not in any way participated in the Ladd Center project. Additionally, there is no evidence that his employer will be financially impacted. However, a person holding an ownership interest in SCOBCO, his employer, has raised environmental concerns about the project. At this time, there has been no evidence that the owner will be financially impacted by virtue of the petitioner’s actions on the project. The potential for a benefit or detriment affecting the petitioner’s employer, and thereby constituting a substantial interest under the law, is too remote and speculative to trigger prohibitions under the Code of Ethics. As such, while a person holding such an interest in his employer objecting to the Ladd Center project would normally raise conflict of interest issues because of a financial impact, none are present here. We advise the petitioner to return to the Commission for further guidance if he becomes aware of any possible financial impact to his employer or to those with ownership interests in the company.

Finally, we note that concerns have been raised in this matter about whether participation by the petitioner in the impending Planning Board decisions would create "an appearance of impropriety" because of the matters discussed above. That may or may not be the case, but it is not relevant for our determination here. While the General Assembly included as one of its legislative purposes when enacting the Code of Ethics the elimination of appearances of impropriety, it did not make the appearance of impropriety a violation of the law. Nor has this Commission promulgated regulations to that effect. Therefore, if, in a particular situation the petitioner believes his participating would create an appearance of impropriety, he may, although he is not required to do so, recuse.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

99-134

93-2

89-37

Keywords:

Private Employment