Advisory Opinion No. 2002-1

Re: L. Neill Gray

QUESTION PRESENTED

The petitioner, a member of the Coastal Resources Management Council (CRMC), a state appointed position, and the Newport Waterfront Commission (NWC), a municipal appointed position, requests an advisory opinion as to whether, generally, he must recuse from the CRMC’s consideration of matters previously reviewed by the NWC. He seeks further guidance regarding his ability to participate in a specific CRMC matter in which the NWC provided input to the Newport City Council on waterfront issues in a water rights dispute to which the City is an abutter.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Coastal Resources Management Council (CRMC), a state appointed position, and the Newport Waterfront Commission (NWC), a municipal appointed position, may participate and/or vote in the CRMC’s consideration of matters previously reviewed by the NWC, provided that neither he nor his family has a financial interest in such matters. Further, the Code of Ethics does not prohibit his participation and/or vote in the CRMC’s consideration of an application where he previously provided the City of Newport with advice on a water rights dispute among abutting property owners.

The petitioner is a self-employed marine businessman who serves on both the Coastal Resources Management Council (CRMC) and the Newport Waterfront Commission (NWC). The NWC is appointed by the Newport City Council pursuant to municipal ordinance and acts as an advisory body to the Council regarding overall organization of the harbor and related marine affairs. He advises that the NWC may review applications that come before the CRMC when 1) an applicant requests an informal local review prior to submission to the CRMC; and 2) the City of Newport requests the NWC’s input as part of the full CRMC’s formal public comment process. Subsequent to the public comment period, the CRMC conducts a hearing and issues its ruling on the application.

The petitioner further advises that a specific matter in which he had input as a NWC member is scheduled to come before the CRMC. He informs that a Newport waterfront property owner submitted an application to the CRMC, and the Newport City Council requested the NWC’s input as part of the CRMC’s formal public comment process. Prior to the CRMC conducting its hearing, the applicant and two abutting property owners disputed their water rights in a common area. The petitioner indicates that the City of Newport owns the property between the disputing property owners. The parties litigated the matter in court, the result of which was a consent order clarifying their respective water rights. The petitioner represents that, in his capacity as a NWC member, he provided the City Solicitor with advice on waterfront issues relating to the litigation. The CRMC has scheduled the application for hearing in January 2002.

The Code of Ethics provides, inter alia, that a public official may not participate in matters where he or she has a substantial conflict of interest, use his or her office for pecuniary gain, or accept employment that would impair his or her independence of judgment as to his or her official duties. See R.I. Gen. Laws §§ 36-14-5(a), (b), (d), 7(a). A substantial conflict of interest exists if the public official has reason to believe or expect that he or she, or a business associate, or any business by which the official is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a).

No provision in the Code of Ethics prohibits voting in one forum and then in another. In an analogous advisory opinion, the Commission concluded that the Code of Ethics did not prohibit a member of the Pawtucket Water Supply Board from also serving as an elected City Councilor in that municipality. See e.g., A.O. 99-110. There, the Council member served on the Water Supply Board as a representative of the City Council. That the Council member would have the ability to vote on the same issues as a member of both entities did not act as a bar to such simultaneous service. See also, 2000-34 (opining that Warwick City Councilors also may serve on the Warwick Station Redevelopment Agency’s negotiating team, notwithstanding that the Agency may become involved with zoning and property tax issues which would require the Council’s official action); A.O. 97-94 (finding that a Block Island Town Councilor who sat on a Health Services Board of Directors due to the Town’s financial interest in the facility could participate in matters directly or indirectly affecting the Block Island Health Services, Inc., since there was no personal financial incentive for Council members to either serve on the Board or in the health services business generally); A.O. 97-145 (concluding no substantial conflict of interest for the Executive Director of RIHMFC, who served as an ex officio member of the State Housing Appeals Board, to participate in a matter affecting a prior applicant before RIHMFC).

Although there may be overlap in the petitioners’ public roles, a substantial conflict of interest is not apparent by the petitioner holding these positions which may only involve the other public entity. Previously, the Commission opined that no conflict of interest would occur if the DEM’s Chief of Permitting for the Office of Water Resources were to accept appointment as Chairperson of the Cranston Planning Commission, despite the fact that Planning Commission matters may involve the DEM. See A.O. 99-12. There, the Commission advised that the individual could advise a project applicant before the Planning Commission as to whether a DEM permit is required, review a project that received a DEM permit for compliance with the Cranston Comprehensive Plan, or supervise the DEM permit review of a Planning Commission applicant, unless for some reason those matters impacted the other public entity or the individual (i.e., litigation involving DEM and the petitioner and a project applicant or Planning Commission substantive review of DEM permitting decisions).

Sections 5(a) and 5(d) of the Code do not create an absolute bar to the petitioner’s simultaneous service as an appointed member of both the CRMC and NWC. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out his official duties 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 petitioners’ public positions and his private financial interests. Generally, the petitioner may participate in the CRMC’s review of matters previously reviewed by the NWC, given that he would not receive any personal benefit, financial or otherwise, by or because of any official activity he may take as a CRMC member. However, in the event that any matters before the CRMC or the NWC may impact property owned by the petitioner and/or his family members, or otherwise implicate their financial interests, the Code requires him to recuse from participation and vote on such matters. Notices of recusal should be filed with the Ethics Commission and either the NWC and/or the CRMC in accordance with R.I. Gen. Laws § 35-14-6.

Finally, the Commission concludes that the petitioner may participate and/or vote in the CRMC’s consideration of the specific application at issue, notwithstanding the fact that the NWC provided the City of Newport with input regarding a water rights dispute ancillary to the CRMC’s consideration of the application. The Code of Ethics requires the petitioner to recuse from participating as a CRMC member in matters that would impact the NWC generally. See A.O. 2000-71. However, there is no indication that the application at issue would impact the NWC financially. Rather, the City of Newport merely is an abutter to the applicant property. Further, the CRMC is not engaging in a substantive review of a decision rendered by the NWC. Provided that the matter before the CRMC would not result in a financial gain or loss to the petitioner and/or his family, the Code does not require his recusal. In sum, while simultaneous service in the two positions is not barred by the Code of Ethics, the relevant statute and regulations would require that the petitioner be particularly vigilant as to the matters in which he participates.

Code Citations:

36-14-5(a)
36-14-5(b)
36-14-5(d)
36-14-6
36-14-7(a)

Related Advisory Opinions:

99-110
99-57
99-22
99-12
98-129
98-75
97-145
97-94
96-26
96-9

Keywords:

Dual public roles
Litigation