Advisory Opinion No. 2000-95

Re: Scott Millar

QUESTION PRESENTED

The petitioner, an Exeter Planning Board member, a municipal appointed position, who is employed by the Department of Environmental Management (DEM), a state employee position, requests an advisory opinion as to whether he may participate in the Planning Board’s consideration of matters related to the Ladd Center project, notwithstanding 1) his employment with the DEM; and 2) his prior recusals on Planning Board matters relating to the project.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, an Exeter Planning Board member, a municipal appointed position, who is employed by the Department of Environmental Management (DEM), a state employee position, may participate and vote on Planning Board matters involving the Ladd Center project given that 1) the DEM division within which he works has no regulatory authority over or involvement with that project; and 2) there is no evidence that his participation in such matters will benefit his private financial interests. See R.I. Gen. Laws §§ 36-14-5(a), 5(d). Further, his prior recusals do not bar his present participation in such matters, as they were exercised on a voluntary basis and not due to any requirements contained within the Code of Ethics.

The Code of Ethics provides that the petitioner 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 his duties in the public interest. A substantial conflict of interest occurs if he has reason to believe or expect that he or any family member or business associate, or any business by which he is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, the Code provides that he shall not accept other employment which will either impair his independence of judgment as to his official duties or induce him to disclose confidential information acquired by him in the course of and by reason of his official duties. R.I. Gen. Laws § 36-14-5(b). Finally, pursuant to R.I. Gen. Laws § 36-14-5(d), he is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate, or any business by which he is employed or which he represents.

The petitioner is the Coordinator of the Department of Environmental Management’s (DEM) Sustainable Watersheds Program. He advises that the DEM division within which he works, the Bureau of Policy and Administration, has no regulatory authority over or involvement with the Ladd Center project. Previously, he voluntarily recused from participating in the Exeter Planning Board’s consideration of matters involving the Rhode Island Economic Development Corporation (EDC)’s development of the former Ladd Center. In October of 1998, he drafted a preliminary memorandum regarding broad policy issues relating to potential development of the former Ladd Center. He indicates that the property’s use had not been established at that time, and that neither he nor the DEM has had any further input regarding the project. The petitioner coordinates the DEM’s involvement in the RI Watershed Partnership. He also manages projects to assist watershed communities exploring creative land use techniques to accommodate growth and minimize environmental impacts. Although the Ladd Center project is located within the South County Watershed area, he represents that none of the projects with which he or his staff is involved concerns the Ladd Center site. Finally, he advises that a recent vacancy has left the Planning Board without a quorum to hear Ladd Center project matters.

Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to simultaneous service as a DEM employee and an Exeter Planning Board member. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out an official’s duty in the public interest. In order for a substantial conflict of interest to exist, there must be some evidence of a financial nexus between the petitioner’s public positions and his private financial interests. A substantial conflict of interest is not apparent by the petitioner holding these positions and participating in a matter which may only involve the other entity (i.e., participating as a Planning Board member where property may be impacted by regulatory programs administered by a separate division of the DEM). Here, there is no indication that the matters under the Planning Board’s consideration would financially impact the petitioner.

The Commission concludes that the petitioner may participate in the Planning Board’s consideration of matters involving the Ladd Center project. The DEM division within which the petitioner works has no regulatory authority over or involvement with the development of the former Ladd Center. The petitioner further advises that 1) he previously drafted a preliminary memorandum regarding broad issues relating to potential development of the former Ladd Center; and 2) he coordinates the DEM’s involvement with the RI Watershed Partnership, of which the South County Watershed is a member. The fact that the DEM raised preliminary, broad based policy concerns regarding any potential development of the Ladd Center project site does not implicate any of the prohibitions contained within the Code of Ethics. Nor does the location of the project site within a participating watershed community prohibit his participation in such matters, given his representation that neither he nor his staff has involvement in watershed projects which involve the project site. Finally, that the former Ladd Center is being developed by the EDC, a quasi-state agency, and the petitioner is a state employee does not raise any of the prohibitions contained within the Code of Ethics.

Here, the Commission reaches its conclusion without applying the Rule of Necessity. If the Planning Board were not able to achieve a quorum to consider Ladd Center project matters due to recusals required by the Code of Ethics, the Rule of Necessity would allow the participation of one or more Board members, notwithstanding their conflicts of interest, so as to achieve a quorum. However, application of the Rule is not required in this instance since the petitioner’s employment within the DEM’s Bureau of Policy and Administration does not create an inherent conflict which would require his recusal on matters relating to the Ladd Center project. Accordingly, his prior recusals on related matters have no bearing upon his ability to participate and vote on the Ladd Center project consistent with the provisions of the Code of Ethics.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-7(a)

36-14-6

Related Advisory Opinions:

2000-85

2000-74

2000-71

99-130

99-100

99-22

99-12

97-113

96-26

Keywords:

Dual public roles

Recusal

Rule of necessity