Advisory Opinion No. 2001-24

Re: Paul F. Caranci

QUESTION PRESENTED

The petitioner, a North Providence Town Councilor, a municipal elected position, who also is employed by the Office of the Secretary of State, requests an advisory opinion as to whether he may participate and vote on Council matters involving the Salvation Army Thrift Store, given that it is located in property owned by the Secretary of State’s Deputy Chief of Staff.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a North Providence Town Councilor, a municipal elected position, may participate and vote on Council matters involving the Salvation Army Thrift Store, despite the fact that it is located in property owned by the Secretary of State’s Deputy Chief of Staff, given that they do not have a familial relationship and no business association exists between the parties.

The Office of the Secretary of State employs the petitioner as the Director of the First Stop Business Information Center. The petitioner advises that the Deputy Chief of Staff, Ed Giroux, owns rental property in North Providence in which a Salvation Army Thrift Store is located. In December 2000 and January 2001, he recused himself from the Council’s consideration of matters involving the Thrift Store due to the fact that Mr. Giroux had exercised a degree of supervisory authority over him under former Secretary of State Langevin’s administration. However, he indicates that under the new administration, Mr. Giroux does not exercise any direct supervisory authority over him or his job function, although he does remain above him in the chain of command. He represents that Mr. Giroux has no hiring/firing authority or day to day supervisory authority over him. He neither determines the Information Center’s budget nor recommends or authorizes pay raises. The Council will consider issues involving the Thrift Store at its March 6, 2001 meeting.

Under the Code, a public official may not participate in any matter in which he or she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his or her duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). An official will have an interest in substantial conflict with his or her official duties if he or she has a reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” See R.I. Gen. Laws § 36-14-2(3).

Previously, the Commission concluded that a common employment relationship between a public official and a person appearing before him or her does not, absent some other factor, create an inherent conflict within the meaning of the Code of Ethics. See A.O. 98-8 (concluding that a Providence City Councilor’s common employment at the RIDOT with a candidate for a municipal judgeship would not prohibit his participation in the Council’s consideration of candidates for the judgeship). Based upon both the petitioner’s representations and past advisory opinions, the Commission concludes that their common employment at the Secretary of State’s Office is not a relationship that triggers any prohibitions under the Code of Ethics. He and Mr. Giroux are not business associates as they are not joined together to achieve a common financial objective; they merely are employed by the same government entity. See R.I. Gen. Law § 36-14-2(8). The fact that he may take public action involving a fellow state employee’s tenant does not implicate his own private financial interests. Further, because Mr. Giroux does not exercise any direct supervisory authority over him, the petitioner’s employment by the Secretary of State’s Office is not “other employment which will impair his … independence of judgment” as to his official duties and responsibilities as a member of the Providence City Council. R.I. Gen. Laws § 36-14-5(b).

Therefore, absent any specific, identifiable conflicts of interest, no provisions of the Code of Ethics would prohibit the petitioner from participating and voting in the Council’s consideration of matters involving the Thrift Store. Finally, when enacting the Code of Ethics, the General Assembly included as one of its legislative purposes the elimination of appearances of impropriety. The legislature did not, however, make the appearance of impropriety a violation of the law. Therefore, if, in a particular situation the petitioner believes his participating would create an appearance of impropriety, he may recuse, although he is not required to do so.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(b)

36-14-7(a)

Related Advisory Opinions:

2001-8

99-114

99-96

99-90

99-40

99-32

98-8

92-72

Keywords:

Code jurisdiction

Public employment