Advisory Opinion No. 2002-62

Re: Margaret L. Dudley

QUESTION PRESENTED

The petitioner, Chairwoman of the Burrillville Housing Authority (BHA) Board of Commissioners, a municipal appointed position, requests an advisory opinion as to whether, if elected to the Burrillville Town Council, she may continue to serve on the BHA Board of Commissioners, given that the Council is its appointing authority.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics would not prohibit the petitioner from simultaneously serving on the Burrillville Town Council and the Burrillville Housing Authority (BHA) Board of Commissioners, given that she serves on the BHA as an uncompensated volunteer.

The petitioner represents that she has been a member of the Burrillville Housing Authority (BHA) Board of Commissioners since 1991. She has served as its Chairwoman for the past six years. She advises that she currently is a candidate for election to the Burrillville Town Council, the BHA’s appointing authority. The petitioner informs that the BHA does not receive funding from the Town and is governed by HUD rules and regulations. Further, she indicates that the BHA is the sole owner of its properties. Finally, the petitioner receives no benefits or compensation as a BHA Board member.

Under the Code of Ethics, a public official 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 in the public interest. See R.I. Gen. Laws § 36-14-5(a). An official will have an interest in substantial conflict with her official duties if it is likely that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of her activity, to the official, a family member, or a business associate. See R.I. Gen. Laws § 36-14-7(a). A public official may not use her public position to obtain financial gain, other than that provided by law, for herself, her family or business associates. See R.I. Gen. Laws § 36-14-5(d). Commission Regulation 36-14-5006 further 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.

The petitioner has served on the BHA Board of Commissioners for more than a decade prior to her candidacy for the office of Town Council. Despite the fact that the Council is the BHA’s appointing authority, the Board position carries with it no remuneration or financial benefit. Therefore, if elected to the Council, the petitioner may seek and accept reappointment to the BHA Board of Commissioners without running afoul of Regulation 5006. See A.O. 97-17 (concluding that a Bristol County Water Authority member, who subsequently had been elected to Town Council, could not receive or accept reappointment by the Council to the Water Authority, a remunerated position); A.O. 94-55 (advising a Warren Town Councilor that he could receive and accept an appointment to the Bristol County Water Authority given that he agreed to waive any and all compensation).

Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to simultaneous service as a member of both the BHA and the Council. 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. R.I. Gen. Laws § 36-14-2(3) defines "business associate" as a "person joined together with another person to achieve a common financial objective." The underlying definition of "business" does not, however, extend to public entities such as the BHA or the Council. Therefore, the Code of Ethics does not prohibit the petitioner from participating in matters relating to, or even benefiting, the BHA while a member of the Council, provided that the matters at issue do not involve potential direct or indirect benefit to the petitioner herself. See A.O. 2002-55; A.O. 97-17. In the event that a matter involving the BHA comes before the Council that would financially impact her, the petitioner must recuse from participation and vote. Notice of recusal should be filed with the Ethics Commission and the Burrillville Town Council in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-2(3)
36-14-5(a)
36-14-5(d)
36-14-6
36-14-5006

Related Advisory Opinions:

2002-55
2001-53
99-104
99-2
98-104
97-138
97-31
97-26
97-17
94-55

Keywords:

Appointing authority
Dual public roles