Advisory Opinion No. 2003-37

Re: Amy G. Rice

QUESTION PRESENTED:

The petitioner, a Portsmouth Town Council member, a municipal elected position, requests an advisory opinion as to whether she may simultaneously serve as a Bail Commissioner/Justice of the Peace, a state appointed position, for the Town of Portsmouth.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Portsmouth Town Council member, a municipal elected position, may simultaneously serve as a Bail Commissioner/Justice of the Peace, a state appointed position, for the Town of Portsmouth.

The petitioner represents that she is a Bail Commissioner/Justice of the Peace (“JP”) for Newport County which includes the Town of Portsmouth. In that capacity, she represents that she performs arraignments and signs warrants when the District Court is closed. Additionally, the petitioner informs that she is a member of the Portsmouth Town Council. She informs that an issue arose as to her ability to act as a JP for the Town of Portsmouth since the Portsmouth Town Counsel sits as the Commissioner for Public Safety and in turn hires and fires all public safety officers.

Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her 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 her 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). R.I. Gen. Laws § 36-14-5(b) provides that the petitioner may not accept other employment which would impair her independence of judgement or require her to disclose confidential information acquired in the course of her official duties. Finally, the Code prohibits the petitioner 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 family member, or business associate. See R.I. Gen. Laws § 36-14-5(d).

Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to simultaneous service as a Portsmouth Town Council member and a JP. 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. Here, the petitioner’s simultaneous service in both positions does not present an inherent conflict of interest under the Code of Ethics. It is unlikely that the petitioner’s involvement with the Town Council would impact on her responsibilities as a JP, or vice versa, given the different spheres of responsibilities that fall to those respective positions. Further, the mere fact that the petitioner, in her capacity as a JP, interacts with public safety officers does not create a relationship that would warrant her recusal from Town Council matters involving such officers.

Finally, the petitioner is advised that this opinion solely addresses whether the Code of Ethics prohibits her from simultaneously holding her respective positions. This opinion does not, and cannot, address whether the Portsmouth Town Charter or any other ordinances, statutes, rules or policies prohibit such simultaneous service. The Ethics Commission does not exercise jurisdiction over those other provisions of law and, therefore, is not empowered to issue advisory opinions addressing or interpreting their effect.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-6

Related Advisory Opinions:

2001-43

2000-56

2000-22

99-89

96-120

Keywords:

Dual public roles