Advisory Opinion No. 2002-25

Re: Senator Stephen D. Alves

QUESTION PRESENTED

The petitioner, Chairman of the Town of West Warwick Pension Board, a municipal appointed position, requests an advisory opinion as to whether and under what circumstances he must recuse himself from participating in matters in which the Pension Board’s advisor/consultant, a division of the petitioner’s private employer, is participating in discussions or offering advice.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, Chairman of the Town of West Warwick Pension Board, a municipal appointed position, may participate and/or vote in general Pension Board matters in which Prime Consulting, a division of petitioner’s private employer, participates in discussion or renders professional advice in its capacity as the Board’s advisor/consultant. However, the petitioner must recuse from participation and voting on matters regarding the selection, appointment or remuneration of Prime Consulting as the Pension Board’s advisor. Similarly, he must recuse from participation and voting on any matters relating to UBS Paine Webber-affiliated products or services.

The petitioner, Chairman of the West Warwick Pension Board, recently entered the employ of UBS Paine Webber as a broker/investment advisor. He represents that the Pension Board is advisory in nature, with duties generally involving the obtaining of information about investments, investment advisors and other pension issues, and making recommendations for action to be taken by the West Warwick Town Council. He further states that both the Pension Board and the Town Council use Prime Management, a division of UBS Paine Webber, as a consultant/advisor with respect to pension matters including the hiring, monitoring and firing of money managers.

Under the Code of Ethics, a public official or employee may not use his position, other than as provided by law, to benefit himself, and may not participate in any matter in which he has an interest in substantial conflict with his public duties. A substantial conflict of interest exists if, for example, an official has reason to believe or expect that he or an employer will derive a direct monetary gain or loss by reason of his official activity. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). Additionally, R.I. Gen. Laws § 36-14-5(d) provides that a public official cannot use his or her office for pecuniary gain, other than provided by law, for himself, family, employer, business associate, or a business that he represents. Finally, R.I. Gen. Laws § 36-14-5(b) prohibits a public official from accepting other employment which will either impair his independence of judgment as to his official duties, or induce him to disclose confidential information acquired by him in the course of his official duties.

Based on the facts as presented by the petitioner, the mere fact that the Pension Board’s advisor/consultant is a division of his employer does not prohibit him from participating in Pension Board discussions, votes or other matters in which Prime Consulting has participated in the discussion or has rendered professional advice. To the extent such matters do not involve Prime Consulting or UBS Paine Webber products or services, there is no indication that the petitioner’s private employer will derive a direct monetary gain or loss by reason of his official activity.

If, however, any matters arise involving the Town’s use of products or services of Prime Consulting or UBS Paine Webber, then the financial interests of the petitioner’s employer are implicated and he is required to recuse from participation and voting. For the same reasons, the petitioner must recuse himself from any discussions or votes involving the reappointment, retention or payment of Prime Consulting in its capacity as advisor/consultant to the Pension Board. Notices of recusal should be filed with both the Ethics Commission and the Pension Board in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-6

36-14-7(a)

Related Advisory Opinions:

99-84

97-93

96-58

Keywords:

Private employment