Advisory Opinion No. 2001-9

Re: Donald Bollin

QUESTION PRESENTED

The Tiverton Town Administrator requests an advisory opinion on behalf of the petitioner, a Tiverton Town Councilor, a municipal elected official, as to whether he must recuse from participating in the Council’s consideration of matters relating to the provision of sewerage service to different areas within Town, given that he owns a septic tank cleaning service.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Tiverton Town Councilor, a municipal elected position, may not participate in the Council’s consideration of matters involving the provision of sewerage service to different areas within Town, given that such matters likely would impact his private financial interests as the owner of a septic tank cleaning service. See R.I. Gen. Laws § 36-14-5(a), (b) and (d).

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. R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). Additionally, the Code provides that an official has reason to believe or expect a conflict of interest exists if it is "reasonably foreseeable" that (s)he, a family member, employer, or business associate will be financially impacted. To be "reasonably foreseeable" the probability must be greater than "conceivable," but the impact need not be certain to occur. See Commission Regulation 36-14-6001. Also, R.I. Gen. Laws § 36-14-5(b) prohibits a public official from accepting other employment that will either impair his independence of judgment as to his official duties or employment or require him to disclose confidential information acquired by him in the course of his official duties. Finally, R.I. Gen. Laws § 36-14-5(d) provides that a public official may not use his office for pecuniary gain, other than provided by law, for himself, a business associate, an employer, business associate, or a business that he represents.

In past advisory opinion requests, the Commission has required a public official to recuse himself from any matter in which he has a business or financial interest, or which involves the financial interests of a direct competitor. Here, the Commission concludes that the petitioner may not participate and/or vote in the Council’s consideration of matters relating to the provision of sewerage to various areas within the Town of Tiverton. It is reasonably foreseeable that matters concerning the provision of sewerage services may have a direct financial impact upon the petitioner’s septic tank cleaning business, as well as a financial impact upon its competitors. Compare A.O 97-12 (finding a Tiverton Town Councilor may discuss and vote on an ordinance requiring registration of underground storage tanks based on representations that his private business as a heating contractor does not involve testing or repair of such tanks). Accordingly, the petitioner must recuse from participating and voting on any sewerage matters that appear before him as a member of the Council. Notice of recusal should be filed with both the Ethics Commission and the Town of Tiverton in accordance with R.I. Gen. Laws § 36-14-6.

Finally, 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. Therefore, the petitioner may address the Council in his individual capacity on the general issue of sewerage services, provided that he does so in a public forum and is afforded no greater access to the Council by virtue of his public office.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-6

36-14-7(a)

36-14-6001

36-14-7003

Related Advisory Opinions:

2000-62

99-107

98-1

97-34

97-30

97-12

96-101

96-75

95-48

95-36

93-30

92-28

91-41

90-57

Keywords:

Business interest

Private employment

Recusal