Advisory Opinion No. 2002-42

Re: Charles D. Moreau

QUESTION PRESENTED

The petitioner, a Central Falls Housing Authority employee, a municipal employee position, requests an advisory opinion as to whether he may participate in the City of Central Falls’ Section 8 subsidized housing program as a landlord property owner.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Central Falls Housing Authority employee, a municipal employee position, may participate in the City of Central Falls’ Section 8 subsidized housing program as a landlord property owner. However, the Code of Ethics requires his recusal from participation in any Housing Authority matters involving his own property.

The petitioner is employed by the Central Falls Housing Authority as its Capital Fund Coordinator and is in charge of all contractors conducting business on the Housing Authority’s premises. He advises that he owns a 2-unit building in the City of Central Falls. He seeks permission to participate in the City’s Section 8 subsidized housing program as a landlord property owner. He indicates that the current and past practice of the Housing Authority has been to allow its employees to participate in the program upon receiving approval from the Department of Housing and Urban Development (HUD). The petitioner states that he would not conduct any inspections of his property or have any involvement with his property as a Housing Authority employee.

Under the Code of Ethics, the petitioner may not have any interest, financial or otherwise, direct or indirect, 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). A substantial conflict of interest occurs if he has reason to believe or expect that he or any family member or business associate, or any business by which he is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a). He also is prohibited 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. See R.I. Gen. Laws § 36-14-5(d). Further, the Code prohibits the petitioner from representing himself or any other person before the agency of which he is a member or by which he is employed. See R.I. Gen. Laws §§ 36-14-5(e). Finally, no person subject to the Code may enter into a contract with any state or municipal agency unless “the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded.” See R.I. Gen. Laws § 36-14-5(h).

In an analogous context, the Commission previously concluded that a Providence Plan Housing Corporation (PPHC) employee could apply for and participate in a federal HOME program administered by the PPHC. See e.g., A.O. 98-22. There, the Commission opined that the employee’s submission of an application was ministerial in nature and, therefore, would not implicate the revolving door prohibitions of Section 5(e). Similarly, in Advisory Opinion 2001-48, the Commission concluded that a Providence Neighborhood Housing Corporation (PNHC) employee could participate in the City of Providence’s Employee Advantage Homebuyer Program, provided that he did not participate in establishing Program eligibility criteria and recused from participation in all PNHC matters involving his application and loan.

Here, the Central Falls Housing Authority has no role in establishing eligibility criteria for participation in the Section 8 housing program. HUD establishes such criteria and approves applicants for participation. The petitioner has no discretionary authority over who qualifies for participation in the program. As a result, he could not act in his official capacity as a Housing Authority employee to affect his own financial interests. Further, his submission of application materials through his employer, the Central Falls Housing Authority, is a ministerial act. It does not constitute an appearance before the governmental agency by which he is employed, which would be prohibited under R.I. Gen. Laws § 36-14-5(e). Accordingly, the Commission concludes that the petitioner may participate in the Section 8 subsidized housing program as a landlord property owner in the City of Central Falls. However, the Code of Ethics requires his recusal from participation in any Housing Authority matters involving his property. Notice of recusal should be filed with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-5(e)
36-14-5(h)
36-14-6
36-14-7(a)

Related Advisory Opinions:

2001-75
2001-48
2000-28
98-123
98-22
96-59
95-105
95-99
95-29
95-26
95-24

Keywords:

Government loans
Discretionary authority
Ministerial