Advisory Opinion No. 2002-38

Re: John W. Hanley

QUESTION PRESENTED

The petitioner, a Warren Planning Board member, a municipal appointed position, requests an advisory opinion regarding his ability to serve on the Planning Board given that he is privately employed as a remodeling contractor and is the owner of JWH Construction.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a Warren Planning Board member, a municipal appointed official, from serving on the Warren Planning Board. However, the Code does place restrictions as to what matters in which he may participate. The petitioner must recuse from participation and/or vote in the Planning Board’s consideration of all matters involving JWH Construction. Further, he may not appear before the Planning Board while serving on the Board and for one year after his official severance from office.

The petitioner advises that he is a remodeling contractor and the owner of JWH Construction. The typical activity for his business is the construction of additions to existing houses, as well as the remodeling of kitchens and bathrooms. He represents that he has not subdivided any land in the Town of Warren in the past twelve years. In that same period, he received one building permit to construct a home in Warren and appeared before the Warren Planning Board twice. He informs that the main work of the Planning Board concerns land subdivision and it reviews major land developments. In its advisory capacity, the Board also reviews requests for changes to the Town’s Zoning Map and petitions for special use permits and variances before the Zoning Board of Review.

Under the Code of Ethics, the petitioner 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 and employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). The petitioner will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(a). A public official or employee has reason to believe or expect that a conflict may exist when it is “reasonably foreseeable.” Commission Regulation 36-14-6001. The petitioner may not accept other employment that will either impair his independence of judgment as to his official duties or employment or require him to disclose confidential information acquired by him in the course of him official duties. See R.I. Gen. Laws § 36-14-5(b).

R.I. Gen. Laws § 36-14-5(d) prohibits the petitioner 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, business associate, or any business by which he is employed or represents. A "business associate" is defined as any individual or entity joined with a public official "to achieve a common financial objective." R.I. Gen. Laws § 36-14-2(3).

The Code further provides that he may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1) and (2). Section 36-14-5(e)(4) extends these prohibitions for a period of one year after he officially has severed his position with the agency. The legislative intent of this revolving door provision presumably is to minimize any influence the former public official may have with respect to his former agency/employer.

Based upon the petitioner’s representations, the nature of his private employment as a contractor would not necessitate appearances before the Warren Planning Board. The petitioner has not been involved with the subdivision of land in the Town of Warren for more than twelve years and has appeared before the Planning Board only twice during that same period. Here, his private business interest involves the remodeling of existing residential structures. Given the responsibilities and duties of the Planning Board, it is unlikely that his private financial interests would be impacted by a decision of the Planning Board. Accordingly, his service on the Board does not present an inherent conflict of interest under the Code of Ethics.

However, in the event that a matter involving JWH Construction comes before the Planning Board, the petitioner must recuse from participation and vote. Further, he must recuse from the Board’s consideration of any matter involving a direct competitor of his company. See A.O. 98-131; A.O. 96-70. The petitioner is advised that, in the event that a matter comes before the Board that affects a competitor, it may be appropriate for him to request an additional advisory opinion from this Commission.

Finally, the petitioner seeks guidance as to the procedure for recusal under the Code of Ethics.

Recusing is not the same as abstaining, which may mean that the public official will not vote, but has participated in discussions on a matter. Recusal means that the official is not participating in deliberations or debates, making recommendations, giving advice, considering findings, or in any other way assuming responsibility for or participating in any aspect of the decision-making relating to a matter. Prior to his recusal, the petitioner must prepare a written statement, sworn to under the penalties for perjury, which describes the matter requiring action and the nature of the potential conflict. If the matter is considered at an open meeting, the petitioner need not leave the room. However, if the Planning Board is in executive session, the petitioner must exit the room while the matter on which he has recused is under consideration. Notice of recusal should be filed with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-2(3)
36-14-5(a)
36-14-5(b)
36-14-5(d)
36-14-5(e)
36-14-6
36-14-7(a)
36-14-6001

Related Advisory Opinions:

2002-23
2001-51
2001-9
99-9
98-131
97-146
96-99
96-70

Keywords:

Business interest
Private employment
Recusal