Advisory Opinion No. 2002-51

Re: Andre' M. Boudreau

QUESTION PRESENTED

The petitioner, a New Shoreham Harbors Department seasonal employee, a municipal employee position, requests an advisory opinion as to whether he may seek re-appointment to the New Shoreham Harbors Committee, a municipal appointed position.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a New Shoreham Harbors Department seasonal employee, a municipal employee position, may seek re-appointment to the New Shoreham Harbors Committee.

The petitioner represents that he currently is employed as a New Shoreham Harbors Department seasonal employee, a position he has held since 1996. He advises that each year he is required to re-apply for this seasonal position, which is hired by the Town Manager on recommendation from the Harbormaster. As an employee of the Harbors Department, the petitioner states that the Harbormaster is his direct supervisor. He indicates that the Harbormaster is appointed directly by the Town Council and is supervised by the Town Manager.

In May 2001, the petitioner sent a letter to the Town Council requesting to serve out the un-expired term of a Harbors Committee member who had recently resigned. The Town Council appointed him to the Harbors Committee and his term will expire in December 2002. He represents that the Harbors Committee is an advisory board that makes recommendations to the Town Council regarding harbor related issues (i.e., mooring fields, grant writing, pollution abatement, etc.). He further advises that the Harbors Committee does not have authority over Harbors Department employees. Additionally, the Harbors Committee reviews the overall harbor budget prepared by the Harbormaster, which is approved by the Town Council.

Under the Code of Ethics, a public official or employee 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). An 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, employer, business associate, or a business that he represents. See R.I. Gen. Laws § 36-14-7(a). Also, R.I. Gen. Laws § 36-14-5(b) prohibits a public official or employee from accepting 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 his official duties. R.I. Gen. Laws § 36-14-5(d) provides that a public official may not use his office for pecuniary gain, other than provided by law, for himself, a family member, employer, business associate, or a business that he represents. Finally, Commission Regulation 36-14-5006 provides that no elected or appointed official may accept an appointment by the body of which he or she is a member to any position which carries with it financial benefit or remuneration.

Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to simultaneous service in the Town of New Shoreham as both a seasonal employee of the Harbors Department and a member of the Harbors Committee. 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 petitioner represents that the Harbors Committee does not have any jurisdiction over Harbors Department employees and acts in an advisory capacity to the Town Council. Therefore, it is unlikely that the petitioner’s independence of judgment would be affected in either position by virtue of the fact that he also holds the other position.

Absent additional factors, merely holding the two positions simultaneously would not constitute a substantial conflict of interest under the Code of Ethics. As such, the petitioner is not prohibited from seeking and/or accepting re-appointment to the Harbors Committee while serving as a seasonal employee of the Harbors Department. Further, he may participate in the Harbors Committee’s consideration of harbor-related issues, but is prohibited from participating in matters that would specifically affect his employment with the Harbors Department. In the unlikely event that such matters appear before the Harbors Committee, he is required to recuse from participation and vote. 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(b)
36-14-5(d)
36-14-6
36-14-7(a)
36-14-5006

Related Advisory Opinions:

2000-71
2000-22
99-151
99-109
99-89
99-62
99-2
98-75
97-126
97-17
95-72
95-44
95-34

Keywords:

Appointing authority
Candidate
Dual public roles