Advisory Opinion No. 2002-55

Re: Russell W. Brown

A. QUESTION PRESENTED

The petitioner, the Alternate Building Official for the Town of Richmond, a municipal appointed position, who also serves on the Rhode Island Building Code Standards Committee and the Board of Standards and Appeals, state appointed positions, requests an advisory opinion as to whether he may appear before the Board of Standards and Appeals on behalf of the Town of Richmond in his capacity as the Alternate Building Official.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Alternate Building Official for the Town of Richmond, a municipal appointed official, who also serves on the Rhode Island Building Code Standards Committee and the Board of Standards and Appeals, state appointed positions, may appear before the Board of Standards and Appeals on behalf of the Town of Richmond in his capacity as the Alternate Building Official.

C. DISCUSSION

1. Facts

The petitioner was appointed in July of 2000 as the Alternate Building Official and Deputy Zoning Enforcement Officer for the Town of Richmond. His primary responsibilities in that capacity are to carry out enforcement duties related solely to the Wawaloam Reservation, Inc.. The petitioner represents that this position is part-time and that he is employed full-time as the Building Official and Zoning Enforcement Officer for the Town of South Kingston. Additionally, the petitioner serves as a member of the Rhode Island Building Code Standards Committee and Board of Standard and Appeals. The petitioner states that this is a state body that promulgates the building code and hears appeals and variance requests related to the code.

The petitioner states that on March 31, 2001, he issued a building code violation notice to the Wawaloam Reservation in his capacity as the Richmond Alternate Building Official. The Wawaloam Reservation has filed an appeal of that notice to the Board of Standards and Appeals, of which he also is a member. It is the petitioner’s intention to appear before the Board of Standards and Appeals on behalf of the Town of Richmond, after first having recused himself from sitting on the Board of Standards and Appeals in this matter.

2. Analysis

Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment 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 reasonably foreseeable 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, a business associate, an employer, or any business which the public official represents. R.I. Gen. Laws § 36-14-7(a); Commission Regulation 36-14-6001. Furthermore, the Code of Ethics prohibits any person subject to the Code from representing himself or “any other person” before any state or municipal agency of which he or he is a member or by which he is employed. See R.I. Gen Laws §36-14-5(e)(1) and (2). This prohibition extends for a period of one year after an official or employee leaves public office or employment. The only exceptions to this strict prohibition are those allowed by this Commission “in cases of hardship.” Finally, pursuant to R.I. Gen. Laws § 36-14-5(e)(3), the petitioner may not act as an expert witness before his agency with respect to any matter the agency’s disposition of which will or can reasonably be expected to directly result in an economic benefit or detriment to him or to any business by which the person is employed or that the person represents.

In the present set of facts, the petitioner seeks to appear before the Rhode Island Board of Standards and Appeals regarding his actions taken as the Richmond Alternate Building Official. Therefore, the petitioner is representing the Town of Richmond. Accordingly, the primary issue is whether the Town of Richmond constitutes a “business” as defined under the Code of Ethics, thereby invoking the prohibitions against the petitioner appearing before his own board under Sections 5(a), (e) and 7(a).

R.I. Gen. Laws §36-14-5(e)(2) provides that no person subject to the Code of Ethics shall, “represent any other person before any state or municipal agency of which he or she is a member or by which he or she is employed.” Under the definition set forth in R.I Gen Laws §36-14-2(7), a person means “an individual or a business entity.” The Code does not provide a definition of “individual”. However, Blacks Law Dictionary defines an “individual” as “a single person as distinguished from a group or class.” Clearly, the Town of Richmond would not fall under the definition of “individual.”

Under § 36-14-2(3), the Code defines the term “business” as a “sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, trust or any other entity recognized in law through which business for profit or not for profit is conducted”. The Town of Richmond was incorporated in 1747. As a result, the legislature adopted its Town Charter and recognized the Town as a municipal corporation. Municipal corporations are distinguishable from corporations. A municipal corporation is a legal institution formed by charter from state power for the purpose and with the authority of subordinate self-government and improvement and local administration of affairs of state. Alternatively, a corporation is an artificial person or legal entity created by statute. Moreover, corporations are treated uniformly and created pursuant to the same provisions under state law. Municipal corporations are uniquely established, each having its own distinct structure. Additionally, Title 7 of Rhode Island General Laws relating to Corporations, Associations, and Partnerships governs all Business Regulation and is regulated by the Office of the Secretary of State. Municipal corporations are not included within Title 7 and are not subject to normal business regulation.

Furthermore, the Code extends the definition of “business” to include “any other entity recognized in law through which business for profit or not for profit is conducted”. Under no provisions of the Rhode Island General Laws does the definition of “business” include municipal corporations. Rather, it is consistent with the definition provided in the Code of Ethics. The most expansive definition of “business” is found in R.I. Gen. Laws §17-25-3(1), which states that a “business entity” means “any corporation, whether for profit or not for profit, domestic corporation or foreign corporation…financial institution, cooperative association, receivership, trust, holding company, firm, joint stock company, public utility, sole proprietorship, partnership, limited partnership….” Municipal corporations are not included in this laundry list of entities that constitute a business. Therefore, the Town of Richmond is not a business as defined under Rhode Island General Laws and, as such, Sections 5(e)(2) and (3) do not apply.

Under the provisions of §36-14-5(e)(3), the Code further prohibits an individual from acting as an expert witness before any state or municipal agency of which he is a member, which can reasonably be expected to directly result in an economic benefit or detriment to him, his family or any business associate of the person or any business by which the person is employed or which the person represents. Here, the same rational applies. The Code of Ethics would prohibit the petitioner from representing any business by which he is employed or which he represents before the Board of Standards and Appeals, of which he is a member. However, the petitioner in this case is representing the Town of Richmond in his official capacity as its Alternate Building Official. As discussed supra, the Town of Richmond is not a “business”. Therefore, the petitioner would not be representing a business by which he is employed or which he represents when he appears before the Board of Standards and Appeals.

To trigger the prohibitions contained in Sections 5(a) and 7(a) of the Code, the petitioner and/or a business by which he is employed or represents must be financially impacted by his official actions. Arguably, a financial gain or loss could accrue as a result of issuance of the notice of violation and its subsequent appeal before the Board of Standards. However, as previously discussed, the Town of Richmond is not a business by which the petitioner is employed or represents. Accordingly, the petitioner’s appearance before the Board of Standards does not constitute a substantial conflict of interest with the proper discharge of his public duties.

Code Citations:

36-14-2(7)
36-14-5(a)
36-14-5(e)
36-14-7(a)
36-14-6001

Keywords:

Revolving Door