Advisory Opinion No. 2001-56

Re: Katherine A. D'Arezzo

QUESTION PRESENTED

The petitioner, the Rhode Island Ethics Commission’s Acting Executive Director, a state employee position, requests an expedited advisory opinion as to her ability to participate in the consideration of Complaint matters involving the Commission’s Legal Counsel.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Rhode Island Ethics Commission’s Acting Executive Director, a state employee position, may participate in the consideration of Complaint matters involving the Commission’s Legal Counsel.

The petitioner advises that on March 19, 2001 and March 20, 2001, respectively, representatives of Operation Clean Government filed Complaints Nos. 2001-6 and 2001-7 against William J. Conley, Jr., Esq., Legal Counsel to the Rhode Island Ethics Commission, which set forth allegations relative to his conduct as the East Providence City Solicitor. At its May 22, 2001 meeting, the Commission discussed in open session whether it would be necessary to appoint an independent legal counsel, prosecutor and investigator with regard to said Complaints, due to the staff’s relationship with Legal Counsel. The Acting Director represents that, in her capacity as a staff attorney, she prosecutes Complaints before the Commission, including probable cause hearings and public adjudications. Additionally, she presents advisory opinions and recommendations to the Commission with regard to legislation, regulations and policy matters. Legal Counsel Conley advises the Commission on all such matters. Since April 4, 2001, her duties as Acting Executive Director have involved expanded dealings with Mr. Conley, including substantive discussions regarding litigation, regulatory and policy matters. The Chair and Vice Chair review Mr. Conley’s bills for legal services and authorize payment. The Acting Director performs the ministerial function of signing the payment invoices. However, line items on the bills do reflect consultations with her in her capacity as Acting Executive Director. Attorney Conley is not a state employee, but provides legal services to the Commission under a contract for professional services.

Under the Code of Ethics, a public official or employee may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). The petitioner will have an interest in substantial conflict with her official duties if she has a reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of her official activity, to herself, a family member, a business associate, an employer, or any business which she 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. Without a relationship covered by the Code of Ethics (e.g., business associate, family, or employer), nothing in the Code prohibits the petitioner from participating in the matters involving Mr. Conley. See A.O. 2001-24 (concluding that a Town Councilor employed by the Secretary of State’s Office may participate in Council matters involving 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); A.O. 99-40(holding a Woonsocket Personnel Board member may participate in matters involving the Woonsocket Police Department notwithstanding that he previously served as Chief of that Department’s Reserve Force and has an existing social relationship with someone in the Department); 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); A.O. 92-72 (finding a Middletown Zoning Board member could participate in a matter where a social relationship but no business relationship exists with applicant provided that the Council member could act in an impartial manner concerning that person’s application). 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 the petitioner believes her participating would create an appearance of impropriety, she may recuse, although she is not required to do so.

Based upon both the petitioner’s representations and past advisory opinions, the Commission concludes that the Acting Executive Director’s and Legal Counsel’s common employment at the Rhode Island Ethics Commission is not a relationship that triggers any prohibitions under the Code of Ethics. She and Mr. Conley 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). Further, because Mr. Conley does not exercise any direct supervisory authority over her, the petitioner’s is not “other employment which will impair her independence of judgment” as to her official duties and responsibilities as an employee of the Rhode Island Ethics Commission. R.I. Gen. Laws § 36-14-5(b). Moreover, both the petitioner and Mr. Conley are experienced attorneys and the Acting Director should be allowed to exercise her professional judgment in this matter where no law or Commission precedent precludes her full participation. Also, Mr. Conley, as an attorney, is no doubt aware that he, as the Commission’s Legal Counsel, shall remain independent of the executive director and other Commission employees, thereby adding to the built-in independence between the Commission’s Legal Counsel and the Commission’s Acting Director. See R.I. Gen. Laws § 36-14-9(a)(2). Therefore, absent any specific, identifiable conflicts of interest, no provisions of the Code of Ethics would prohibit the petitioner from participating and otherwise advising the Commission’s consideration of matters involving Mr. Conley’s conduct as East Providence City Solicitor.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-7(a)

Related Advisory Opinions:

2001-24

99-114

99-96

99-90

99-40

99-32

98-08

92-72

Keywords:

Code jurisdiction

Public employment