Advisory Opinion No. 2000-88

Re: Stephen D. Murray/West Warwick

QUESTION PRESENTED

The West Warwick Solicitor requests an advisory opinion on behalf of the West Warwick Building Official, a municipal appointed position, as to whether he may purchase property within that municipality, the availability of which he gained knowledge of while taking official enforcement action.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the West Warwick Building Official, a municipal appointed position, from purchasing property, the availability of which he gained knowledge of while taking official enforcement action, provided that he did not obtain any confidential information relating to said property through his public position and use it to his financial advantage.

The petitioner advises that on June 26, 2000 he posted property located at 8 Dinsdale Court, West Warwick as unsafe due to fire damage. He also took official action to obtain emergency extermination services at that location due to neighbors’ complaints regarding insect infestation. On June 27, 2000, the property’s owners stated their intent to demolish and dispose of the property, at which time the petitioner indicated his interest in purchasing the property. In September 2000, he again responded to the property with regard to insect infestation. He contacted the owners and advised them of repairs that might alleviate the problem, as well as the neighbors’ complaints and the need for an exterminator to inspect the premises. Thereafter, he represents that the owners came to his office and inquired if he was interested in purchasing the property. The petitioner informed them that while he remained interested, pursuant to his discussions with the Town Manager, he should direct any inquiries to a realtor. Although the owners’ realtor contacted him to obtain information needed to list the property for sale, he indicates that he had no other contact with the realtor. He further advises that on two occasions in October 2000, the owners contacted him and asked him to make an offer on the property. In response, he made a “blind offer” of $35,000.00. The owners advised him that they would accept his offer, which was the highest they had received.

The Code of Ethics provides that public officials and employees shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction which is in substantial conflict with the proper discharge of their duties in the public interest. A substantial conflict of interest occurs if an official or employee has reason to believe or expect that he or she or any family member or business associate, or any business by which he or she is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). Further, a public official or employee may not use his or her public office or confidential information received through his or her office to obtain financial gain, other than that provided by law, for himself or herself, a family member, a business associate or an employer. See R.I. Gen. Laws § 36-14-5(d).

In enacting Section 5(d) of the Code, the legislature clearly intended to ensure that public officials did not use confidential information acquired during the exercise of their public duties to obtain a personal financial benefit, such as gaining an unfair bidding advantage over other potential purchasers and/or sellers. Here, while taking enforcement action in his capacity as Building Official, the petitioner learned that the owners of the subject property wished to dispose of it. Based upon the facts presented by the petitioner, however, there is no indication that he used confidential information, to the extent that any existed, to obtain an unfair advantage in his purchase of the property. The fact that the prospective seller engaged the services of a real estate broker and marketed the property to the general public underscores that the petitioner did not take advantage of a "non-public" posting. Upon learning of the property’s availability, he neither initiated contact with the owners or the realtor with regard to its purchase. As a result, he did not have an opportunity to act in his official capacity to affect his own financial interests relating to this property. See R.I. Gen. Laws § 36-14-5(d).

Further, there is no evidence to suggest that the petitioner obtained any information about the property that was not available to the public. Absent some additional factors, the fact that he learned of its availability during the exercise of his official duties and/or prior to the general public does not otherwise present a conflict of interest under the Code of Ethics. Finally, the Commission notes that the petitioner took additional enforcement action relating to the property after he had communicated his interest in acquiring the property to its owners. However, the law constrains the Commission to issue advisory opinions only as to prospective, not past, conduct. Therefore, its conclusion that he may purchase the property at issue without violating the Code of Ethics does not constitute a determination as to the appropriateness or lawfulness of any past conduct.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-7(a)

Related Advisory Opinions:

98-160
98-158
96-74
80-76

Keywords:

Confidential information