Advisory Opinion No. 2002-54

Re: Lori Urso

QUESTION PRESENTED

The petitioner, a Westerly Town Council member, a municipal elected position, who privately is employed as the Executive Director of the Wood-Pawcatuck Watershed Association, requests an advisory opinion as to whether she may participate in the Council’s consideration of matters involving an engineering firm hired by her private employer.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Westerly Town Council member, a municipal elected position, who privately is employed as the Executive Director of the Wood-Pawcatuck Watershed Association, may not participate in the Council’s consideration of matters involving an engineering firm hired by the Watershed Association given that she exercises authority over said firm in her capacity as the Executive Director.

The petitioner is the Executive Director of the Wood-Pawcatuck Watershed Association, a non-profit organization dedicated to the preservation and environmental restoration of the Wood and Pawcatuck Rivers Watershed Area. She advises that a large-scale rezone and commercial development currently is before the Westerly Town Council. She states that the applicant has retained an engineering firm that presently performs work for the Watershed Association. Additionally, the subject firm would present the applicant’s rezone application to the Council. In her capacity as the Executive Director, the petitioner is responsible for the compilation of the budget, makes recommendations to the Board of Trustees and performs all hiring and firing of Watershed Association employees and contractors. The petitioner further inquires as to whether as a member of the general public she may address the Town Council regarding her personal concerns about the large-scale rezone and commercial development.

Under the Code of Ethics, the petitioner may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties and employment in the public interest. See R.I. Gen. Laws §§ 36-14-5(a) and 7(a). She also is prohibited from using her public position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself, a business associate, or any business by which she is employed or represents. See R.I. Gen. Laws § 36-14-5(d). A “business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective.” See R.I. Gen. Laws § 36-14-2(3). Section 5(b) of the Code prohibits her from accepting other employment which would impair her independence of judgment or require her to disclose confidential information acquired by her in the course of her official duties.

Additionally, Section 5(f) of the Code requires the petitioner to recuse herself from voting or participating in the consideration and disposition of a matter involving a business associate. Finally, Commission Regulation 7003 provides that a public official may publicly express his or her own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or his or her spouse or dependent child. This exception to the general prohibitions of the Code of Ethics acknowledges that public officials and employees do not forfeit their First Amendment rights by virtue of serving in a public position.

The petitioner serves as the Executive Director of the Wood-Pawcatuck Watershed Association. In that capacity, she exercises responsibility regarding the hiring and firing of the Association’s employees and contractors. This includes supervisory authority over an engineering firm that has been hired by the rezoning applicant before the Town Council. Here, the subject firm has an ongoing business relationship with the Watershed Association, of which she is the Executive Director. Based upon her position within the Association, she must recuse from the Council’s consideration of matters involving the engineering firm at issue. Notices of recusal should be filed with the Ethics Commission and the Westerly Town Council in accordance with R.I. Gen. Laws § 36-14-6.

Pursuant to Regulation 7003, the petitioner may publicly express her own viewpoint in a public forum on any matter of general public interest or which directly affects her, her spouse or dependent children. Therefore, she may address the Town Council regarding the large-scale rezone and commercial development at a public meeting at which members of the public are invited to speak about the issue. However, she may not receive special access or priority not available to any other member of the public. She is cautioned against using the public forum exception to circumvent Section 5(e)’s prohibition against appearing before one’s own board while serving and for one year thereafter. We further caution the petitioner that she may not in any way use her position improperly to influence members of the Town Council. See R.I. Gen. Laws 36-14-5(d).

Code Citations:

36-14-2(3)
36-14-5(a)
36-14-5(b)
36-14-5(d)
36-14-5(f)
36-14-6
36-14-7(a)
36-14-7003

Related Advisory Opinions:

2000-38
99-50
98-76
98-3
97-114
96-108
96-75
96-54
96-23
95-100
95-59
92-31

Keywords:

Business Associate
Private Employer
Public Forum Exception