Advisory Opinion No. 2002-75

Re: Tom LaColle

QUESTION PRESENTED

The petitioner, the Chairman of the Washington Fire District Board of Engineers and the Washington Fire District Treasurer, regional elected positions, requests an advisory opinion as to whether he may simultaneously serve in both positions.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner’s simultaneous service as the Chairman of the Washington Fire District Board of Engineers and as the Washington Fire District Treasurer, regional elected positions, would not, in and of itself, present a conflict of interest under the Code of Ethics.

Under the Code of Ethics, a public official or employee may not use his position, other than as provided by law, to benefit himself, and may not participate in any matter in which he has an interest in substantial conflict with his public duties. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if, for example, an official has reason to believe or expect that he or an employer will derive a direct monetary gain or loss by reason of his official activity. 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. Finally, 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 business that he represents.

The petitioner represents that he was elected to be a member of the Washington Fire District Board of Engineers by the Washington Fire District taxpayers. The other members of the Board of Engineers subsequently elected petitioner to the position of Chairman of the Board. The petitioner states that the Board of Engineers is responsible for establishing an annual budget, administering the affairs of the Fire District and setting the property tax rate to meet budgetary requirements. In addition to his position on the Board of Engineers, petitioner represents that the same taxpayers have also elected him to serve as the Treasurer of the Washington Fire District.

Sections 5(a) and 5(d) of the Code do not create an absolute bar to simultaneous service as a member/Chairman of the Washington Fire District Board of Engineers and as the Treasurer of the same Fire District. Rather, those provisions require a case by case evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out his official duties in the public interest. In order for a substantial conflict of interest to exist, there must be some evidence of a financial nexus between his public positions and his private financial interests. Although there may be overlap in the petitioner’s public roles as both the Chairman of the Fire District's Board of Engineers and as the Fire District's Treasurer, a substantial conflict of interest is not apparent by him holding these positions simultaneously.

In a past advisory opinion, the Commission concluded that the Code of Ethics did not prohibit a member of the Pawtucket Water Supply Board from also serving as an elected City Councilor in that municipality. A.O. 99-110. There, the Council member served on the Water Supply Board as a representative of the City Council and had the ability to vote on the same issues in different forums. See also A.O. 2000-34 (opining that Warwick City Councilors also may serve on the Warwick Station Redevelopment Agency’s negotiating team, notwithstanding that the Agency may become involved with zoning and property tax issues which would require the Council’s official action); A.O. 97-94 (finding that a Block Island Town Councilor who sat on a Health Services Board of Directors due to the Town’s financial interest in the facility could participate in matters directly or indirectly affecting the Block Island Health Services, Inc., since there was no personal financial incentive for Council members to either serve on the Board or in the health services business generally); A.O. 97-145 (finding no substantial conflict of interest with the Executive Director of RIHMFC, who served as an ex officio member of the State Housing Appeals Board, participating in a matter affecting a prior applicant before RIHMFC).

Given the facts presented, there is no evidence to suggest that the petitioner would receive a personal financial benefit by or because of any official action he may take in his capacity as the Chairman of the Washington Fire District Board of Engineers and as the Washington Fire District Treasurer. The petitioner is cautioned, however, that if any particular matter should arise in either of these positions that could financially benefit him (such as, for example, a decision of the Board to increase the Treasurer's pay), then petitioner must recuse from participation and vote on such matter pursuant to R.I. Gen. Laws § 34-14-6.

Finally, the petitioner is advised that this opinion solely addresses the applicability of the Rhode Island Code of Ethics in Government. This opinion does not address whether any other statutes, regional charters, agency rulings or policies prohibit such concurrent service.

Code Citations:

36-14-5(a)
36-14-5(b)
36-14-5(d)
36-14-6
36-14-7(a)

Related Advisory Opinions:

2002-15
2002-1
2000-54
2000-34
99-110
99-100
97-145
97-94

Keywords:

Dual public roles