Advisory Opinion No. 2002-24

Re: The Honorable Joseph A. Montalbano

QUESTION PRESENTED

The petitioner, a legislator serving as a State Senator, a state elected position, requests an advisory opinion as to whether he may accept employment as legal counsel to a municipal housing authority. He further inquires as to his ability to vote on issues related to said municipal housing authority either in committee, in his capacity as Chairman of the Senate Committee on Judiciary, or on the Senate floor.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a legislator serving as a State Senator, a state elected position, may accept employment as legal counsel to a municipal housing authority, provided that any such contract for professional services is awarded pursuant to an open and public process. However, the Code of Ethics requires the petitioner to recuse from participation and/or vote in all matters involving said municipal housing authority, whether they appear before the Senate Committee on Judiciary or on the Senate floor.

Under the Code of Ethics, a public official 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. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). A public official will have an interest in substantial conflict with his official duties if it is likely 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 or employer. See R.I. Gen. Laws § 36-14-7(a). R.I. Gen. Laws § 36-14-5(b) further provides that he may not accept other employment which would impair his independence of judgement or require him to disclose confidential information acquired in the course of his official duties. Additionally, the Code prohibits him 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 family member, a business associate or employer. See R.I. Gen. Laws § 36-14-5(d). Finally, a public official may not enter into a contract for professional services with any state or municipal agency unless the contract is awarded through a process of public notice and disclosure of financial details. See R.I. Gen Laws § 36-14-5(h).

Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to simultaneous service as an elected member of the General Assembly and as legal counsel to a municipal housing authority. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out an official’s duty in the public interest. Here, the Commission concludes that simultaneous service in both positions would not present an inherent conflict of interest under the Code of Ethics. It is unlikely that the petitioner’s involvement with the municipal housing authority would impact on his responsibilities as a State Senator and vice versa, given the different spheres of responsibilities that fall to those respective positions.

However, the Code prohibits the petitioner’s participation and/or vote in the General Assembly’s consideration of matters directly affecting the municipal housing authority at issue, whether such matters appear before the Senate Committee on Judiciary or on the Senate floor. See A.O. 2000-22 (concluding, inter alia, that simultaneous service as Deputy Compact Administrator within the Department of Corrections, a Johnston School Committee member, and an elected member of the General Assembly does not create an inherent conflict of interest, provided that the individual recuses from participation in matters before the General Assembly that directly affect the School Committee and/or the Department of Corrections). Notice of recusal should be filed with both the General Assembly and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

Based upon the petitioner’s status as an elected public official, any contract for his professional services must be awarded through a process of public notice and disclosure of financial details pursuant to Section 5(h) of the Code. The Commission further reminds the petitioner that he may not represent the municipal housing authority or its interests before the General Assembly, including any committee thereof, for a period of one year after the expiration of his term of office as an elected member of the legislature. R.I. Gen. Laws § 36-14-5(e).

Finally, this opinion solely addresses whether the Code of Ethics prohibits an individual from simultaneously holding these respective positions. This opinion does not, and cannot, address whether any other statutes, rulings or policies, specifically from the State Board of Elections or the Attorney General's Office, prohibit such simultaneous service. The Ethics Commission does not exercise jurisdiction over those statutes and, therefore, is not empowered to issue advisory opinions addressing or interpreting their effect.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(e)

36-14-5(h)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2001-66

2000-82

2000-56

2000-22

99-149

99-62

98-104

98-99

98-59

95-62

95-38

Keywords:

Dual public roles

Private employment