Advisory Opinion No. 2002-73

Re: George H. Gifford, III

QUESTION PRESENTED

The petitioner, a Project Manager for the Town of Cumberland, a municipal employee position, and president and owner of a landscape architecture and environmental planning firm, requests an advisory opinion as to whether his firm may accept private employment as a landscape architect for a proposed commercial development in Cumberland.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a Project Manager for the Town of Cumberland, a municipal employee position, from accepting private employment as a landscape architect for a proposed commercial development in Cumberland, provided that he: 1) does not disclose confidential information acquired by him in the course of his official duties for financial gain; 2) does not advise the planning department on matters concerning the proposed commercial development; and 3) recuses from participation in the discussion of matters regarding the revision of the Town’s Site Plan Review Guidelines that would in any way impact the proposed commercial development.

The petitioner is the part-time Project Manager of the Town’s new growth management initiative assisting the Planning Department on matters concerning future growth planning for the Town. He represents that his position is purely advisory and does not involve any decision-making authority. As part of his official duties, the petitioner represents that he administers the Town’s “visioning program.” He states that the purpose of this program is to obtain opinions from Town citizens on what is considered to be an aesthetically pleasing development of the Town. He indicates that this program is intended to be a precursor to the revision of the Town’s Site Plan Review Guidelines, which are used by the Town Design Review Commission in their review and approval of proposed commercial developments. However, the petitioner states that he will not be involved in the re-writing of the new Guidelines. Additionally, in the petitioner’s private employment, he is the president and owner of a small landscape architecture and environmental planning firm in Cumberland. He represents that a potential client has asked his firm to prepare a site design for a proposed commercial development in Cumberland.

Under the Code of Ethics, the petitioner 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). 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, 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 may not accept 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. See R.I. Gen. Laws § 36-14-5(b). He 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). “Business associate” is defined as any individual or entity joined with a public official or employee “to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3).

Here, the petitioner and the client who hired the petitioner’s firm are business associates as defined under the Code. As such, the petitioner is prohibited from using his public position or disclosing confidential information acquired by him in the course of his official duties for financial gain for his client, his business associate. Therefore, the petitioner is prohibited from advising the Planning Department on matters concerning the client’s proposed commercial development.

Similarly, in the event that the Town’s “Visioning Program” is asked to consider matters relating to or impacting the proposed commercial development, Section 6 of the Code requires the petitioner’s recusal. Notice of recusal should be filed with both the Town of Cumberland and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. Finally, the petitioner may not use any confidential information he obtained in his capacity as either the Project Manager of the Town’s Growth Management initiative or as member of the Town’s “Visioning Program” for private financial gain. See R.I. Gen. Laws § 36-14-5(b), (c), (d). He is further reminded that he may not in any way use his public position to solicit business for himself in his private employment as a landscape architect or as an environmental planner. 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(c)
36-14-5(d)
36-14-6
36-14-7(a)

Related Advisory Opinions:

2001-51
2001-37
2001-27
2001-16
2001-9
99-126
99-120
99-113
99-39
99-37

Keywords:

Financial interest
Private Employment
Recusal