Advisory Opinion No. 2001-49

Re: Kevin P. Menard

QUESTION PRESENTED

The petitioner, a Burrillville Redevelopment Agency member, a municipal appointed position, requests an advisory opinion as to whether he may simultaneously serve as the Director of the Industrial Foundation of Burrillville, a private non-profit corporation.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Burrillville Redevelopment Agency member, a municipal appointed position, may continue to serve as the Director of the Industrial Foundation of Burrillville, a private non-profit corporation provided that, as a member of the Redevelopment Agency, he recuses himself from participation and/or vote on any matters which may financially impact the Industrial Foundation, his business associate under the Code of Ethics. Further, Section 5(e) of the Code prohibits him from appearing before the Redevelopment Agency on the Industrial Foundation’s behalf for a period of one-year following the expiration of his term of office on the Agency.

The petitioner is the Director of the Industrial Foundation of Burrillville, a private, non-profit corporation with the purpose of developing industrial property in the Town of Burrillville. He advises that the Industrial Foundation promotes economic development within the Town and individuals who serve on that organization are not compensated. The Burrillville Town Council recently appointed the petitioner to serve on the Burrillville Redevelopment Agency, a volunteer position. He represents that the Redevelopment Agency promotes the redevelopment and possible acquisition of blighted and substandard Town areas. It further determines the legitimacy and priority of potential redevelopment projects and coordinates and/or directs their implementation.

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. 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. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). 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 a family member. See R.I. Gen. Laws § 36-14-5(d). Section 5(f) of the Code requires the petitioner to recuse himself from voting or otherwise participating in the consideration and/or disposition of a matter involving a business associate. See R.I. Gen. Laws § 36-14-5(f). Under R.I. Gen. Laws § 36-14-2(3), a “business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective.

Previously, the Commission has concluded that public officials are “business associates” of entities for which they serve either as members of the Board of Directors or in other leadership positions that permit them to affect the financial objectives of the organization. If an official has such a leadership position, the Commission has required that the official recuse him or herself if the interests of the organization would be affected by an action to be taken by his or her public agency. See A.O. 98-76 (concluding that a Narragansett Town Councilor should not participate in appropriating funding for the Chamber of Commerce since she served on its Board of Directors); A.O. 98-44 (opining that a Commissioner of Fire Safety Code Board of Appeal and Review should not participate in appeals involving property owned by the International Association of Firefighters (Local 799) and the Providence Firefighters Realty Corporation since the petitioner, who held a position with both entities that would permit him to affect the financial objectives of the organization, had a business association relationship with the organizations that triggered the prohibitions set forth in R.I. Gen. Laws § 36-14-5(a)); A.O. 96-75 (advising three members of the General Assembly who also served as members of the Board of Directors of local hospitals to recuse themselves from participation regarding hospital issues since they had a business association with the local hospitals); and A.O. 95-59 (advising a member of the Smithfield School Committee to recuse himself from a vote concerning a community organization if the official’s association with the organization allowed him to affect the financial objectives of the organization).

In an analogous advisory opinion, the Commission previously concluded that a member of the Commission on the Deaf and Hard of Hearing (CDHH) may simultaneously serve as the president of a local chapter of SHHH, an organization representing hard of hearing persons, provided that she recuse herself from participation and/or vote on any matters which may financially impact SHHH, her business associate under the Code of Ethics See A.O. 99-137. Similarly, the Commission finds that the petitioner’s simultaneous service as both a Burrillville Redevelopment Agency member and the Director of the Industrial Foundation of Burrillville does not, in and of itself, present a conflict of interest under the Code. However, as the Director of the Foundation, the petitioner has a business association with that organization that triggers the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a), 5(d) and 5(f). Accordingly, in the event that matters specifically relating to the Industrial Foundation come before him as a member of the Redevelopment Agency, he must recuse himself from any participation and/or voting in connection with said matters. Notice of recusal should be filed with both the Ethics Commission and the Town of Burrillville in accordance with R.I. Gen. Laws § 36-14-6. Finally, pursuant to R.I. Gen. Laws § 36-14-5(e)’s revolving door prohibitions, the petitioner may not appear before the Redevelopment Agency on behalf of the Industrial Foundation for a period of one year following his official severance from office on the Agency.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(d)

36-14-5(f)

36-14-6

36-14-7(a)

Related Advisory Opinions:

99-139

99-138

99-137

99-118

99-81

99-77

99-64

99-57

99-56

99-50

99-35

99-33

99-24

98-139

98-108

98-76

98-44

98-10

97-13

96-75

96-54

95-59

Keywords:

Business associate

Memberships

Non-profit boards

Revolving door