Advisory Opinion No. 2002-3

Re: Mr. Thomas P. Tighe

QUESTION PRESENTED

The petitioner, Executive Director of the Jamestown Harbor Management Commission, a municipal employee position, requests an advisory opinion as to whether any conflicts of interest arise under the Code of Ethics by reason of an affiliation between certain members of the Harbor Management Commission and an unincorporated association that has filed suit against the Town of Jamestown. The petitioner also seeks general guidance as to when the private interests of Harbor Management Commissioners would so conflict with their public duties that recusal from participation is required under the Code of Ethics.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that no violation of the Code of Ethics would result if members of the Jamestown Harbor Management Commission who are also members of a grassroots organization involved in pending litigation against the Town of Jamestown participate in regular Harbor Management Commission business unrelated to the litigation.

The Jamestown Harbor Management Commission derives its authority from a Town of Jamestown ordinance, pursuant to which it is the primary regulatory and management group for the waters of the Town consistent with the powers conferred upon the Town by the General Assembly pursuant to R.I. Gen. Laws § 46-4-6.9. Section 46-4-6.9 empowers the Town to enact ordinances “for the enforcement and supervision of any rules and regulations established by the town council governing the public waters within its jurisdiction,” including vessels, anchorages, moorages, waterskiing, houseboats, regattas, races, exhibitions, wrecks, and diving.

The petitioner represents that prior to the appointment to the Harbor Management Commission of two particular Commissioners (hereinafter “the subject Commissioners”), the Town increased its mooring fees. In response, a grassroots organization calling itself “Concerned Boaters” formed and sought public support and public funding to challenge the increased mooring fees. He advises that the subject Commissioners signed their names, along with ten others persons, on a letter dated May 22, 2000, which outlined the organization’s concerns. The letter contained a plea for financial support to mount a legal challenge to the Town’s mooring fees. Thereafter, Concerned Boaters commenced a lawsuit against the Town of Jamestown in the Newport County Superior Court. The Harbor Management Commission is not a party to the suit.

The petitioner indicates that the subject Commissioners, in their official capacities, could be voting on matters that would or could directly affect the outcome of the litigation, and that it might be possible for them to obtain information regarding the Town of Jamestown’s strategies in defense of the lawsuit. One of the subject Commissioners, Julio DiGiando, has requested an advisory opinion on this same issue. Therein, he has represented that any discussion of litigation against the Town of Jamestown or against the Town Council is beyond the charge of the Harbor Management Commission, so that it is unlikely that the Harbor Management Commission would be involved in the Town’s strategic decision making regarding the Concerned Boaters’ lawsuit.

Under the Code of Ethics, a member of the Jamestown Harbor Management Commission may not have an interest or engage in any employment or professional activity that is in substantial conflict with the proper discharge of his duties in the public interest. A public official has a substantial conflict of interest if he has reason to believe or expect that he or she, a family member or business associate, 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). Also, he may not use his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, a family member or a business associate. See R.I. Gen. Laws § 36-14-5(d). A “business associate” is an individual or a business entity joined with another person to achieve a common financial objective. R.I. Gen. Laws § 36-14-2(3). Finally, a public official may not disclose, for pecuniary gain, confidential information acquired in the course of and by reason of his official duties. See R.I. Gen. Laws § 36-14-5(c).

Here, even assuming, arguendo, that the subject Commissioners and Concerned Boaters are “business associates” under the Code of Ethics by reason of their common objective in reducing or eliminating mooring fees, there is no indication that Concerned Boaters will obtain any financial benefit by reason of the subject Commissioner’s participation in normal Harbor Management Commission business. Accordingly, the Code of Ethics does not prevent Commission members from participating in general Harbor Management Commission business, notwithstanding an association with an organization that has filed suit against the Town to challenge the Town’s collection and use of mooring fees.

However, in the event that an individual’s responsibilities as a member of the Harbor Management Commission involve him in matters relating to the litigation with Concerned Boaters, such Commissioner should recuse himself from participating and/or voting in such matters. See A.O. 99-31, (finding that a Smithfield Town Councilor could not participate in the Council’s consideration of a lawsuit filed by residents of a subdivision where the Councilor previously had been part of the suit, and where any action by the Council may have a financial impact upon him as a current resident of the subdivision); A.O. 95-37 (advising a Westerly Town Councilor that her pending litigation against the Town concerning her tax assessment would not preclude her participation as a Councilor in budget hearings, but that she would be required to recuse from participation in any Council matter that affected herself, her family, her property, or the pending litigation). See also A.O. 98-134 (concluding that the Tiverton Town Clerk, in his capacity as the Town Administrator Pro Tem, should not review a complaint alleging a charter violation filed against a majority of Town Councilors given that the complainant also filed a complaint against him for Open Meetings violations); A.O. 95-61 (finding that a Lincoln Town Councilor should not participate in matters involving the Lincoln Greyhound Park since he was representing a client in a suit against the Park); A.O. 94-26 (concluding that a Johnston Zoning Board member should not participate in consideration of an application where she was the defendant in a slander suit filed by the applicant). Notice of recusal should be filed with both the Town of Jamestown and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6.

The petitioner also has requested general guidance as to when the private interests of Commissioners would so conflict with the duties of the Harbor Management Commission that recusal from participation is required under the Code of Ethics. For instance, he notes that the Commission is comprised of citizens who represent various groups and interests, and frequently issues arise before the Harbor Management Commission that directly affect these groups and interests.

In the absence of an actual controversy, and without sufficient, specific facts upon which to base an opinion, the Commission declines to enumerate hypothetical conflicts of interest that would warrant recusal under the Code of Ethics. In general terms, recusal is required when a person subject to the Code of Ethics is or may be required to take an action, make a decision or refrain therefrom in the discharge of his or her official duties, that will or can reasonably be expected to directly result in an economic benefit to said person, to his family, to a business associate, or to any business by which said person is employed or which said person represents. See R.I. Gen. Laws § 36-14-6. Recusal also is required when a public official or that official’s family member, business associate, employer or an agent acting on behalf of such family member, business associate or employer appears before the official’s agency or board. See R.I. Gen. Laws §§ 36-14-5(e), (f); Commission Regulation 36-14-5002. The Commission cautions that the Code’s recusal provisions are not meant to be utilized on a regular basis, so that frequent and regular recusals may lead to an appearance of impropriety and amount to a violation of the Code. Regulation 36-14-5003.

Code Citations:

36-14-2(3)
36-14-5(a)
36-14-5(b)
36-14-5(d)
36-14-5(e)
36-14-5(f)
36-14-5002
36-14-5003
36-14-6
36-14-7(a)

Related Advisory Opinions:

99-31
98-134
95-61
95-37
94-26

Keywords:

Litigation
Recusal