Advisory Opinion No. 2003-52 Re: Adrienne G. Southgate, Esq. QUESTION PRESENTED: The petitioner, the Senior Assistant City Solicitor for the City of Providence, a municipal appointed position, seeks guidance as to possible conflicts of interest between her public duties and her private assistance of a not-for-profit organization as either a paid consultant or a volunteer committee member. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a Senior Assistant City Solicitor for the City of Providence, from assisting a private, not-for-profit organization in obtaining funds for development and environmental remediation, provided that the private organization is not in competition with projects sponsored or endorsed by the City of Providence. The petitioner is the Senior Assistant City Solicitor for the City of Providence. In that position, the petitioner's duties include providing legal services for the City Administration and Council on corporate and regulatory matters. Furthermore, the petitioner is assigned to assist certain City departments, including the Department of Planning & Development. Prior to her municipal appointment, the petitioner was the Executive Counsel for the Rhode Island Economic Development Corporation ("EDC"). Among her duties, the petitioner directed the State Brownfields(1) Team, which sought applicants for the Rhode Island Brownfields Cleanup Revolving Loan Fund ("RI Loan Fund"). The RI Loan Fund manages one million dollars funded by a grant from the United States Environmental Protection Agency (USEPA) and managed by a coalition between the EDC and the Rhode Island Department of Environmental Management ("DEM"). The USEPA has approximately $200 million available to establish such funds across the United States and, in fact, the EDC/DEM coalition manages two other such funds in Rhode Island, one with the City of Providence and another with the Rhode Island Industrial Facilities Corporation ("RIIFC"). After leaving the EDC, the petitioner formed a business, Brownfields Solutions LLC, to market her brownfields expertise. Although the business has not yet been launched, the petitioner has been working on a business plan and is exploring necessary certifications. The petitioner has been approached by representatives of West Elmwood Housing Development Corporation ("West Elmwood Development"), a private, not-for-profit organization, asking that she serve on their Development Committee and perhaps provide brownfields consulting through her company, Brownfields Solutions LLC. West Elmwood Development owns the former Rau Fastener facilities in Providence and intends to develop the facilities for mixed use. In order to accomplish this goal, the facilities will require expensive remediation of contamination. In that regard, West Elmwood Development has applied to the RIIFC fund for revolving loan funds. West Elmwood Development wishes to obtain the assistance of the petitioner, either as a volunteer committee member or as a paid consultant through Brownfields Solutions LLC, to obtain further funding for Rau's environmental remediation and development. Certain projects supported by the City of Providence also seek revolving loan funds and other brownfields-related relief from the federal government. As Providence's Senior Assistant City Solicitor, and given her expertise in brownfields matters, it is likely that the petitioner would be tasked with assisting the City in its efforts and applications. Although currently the City is not competing with West Elmwood Development for any such relief or programs, such competition could conceivably occur in the future. The petitioner represents that if such competition were to arise she would either decline to assist West Elmwood Development in its application or would recuse from participation in the City's application. The petitioner seeks guidance from the Commission as to whether and how the Code of Ethics is implicated by the above facts and representations. Under the Code of Ethics, the petitioner may not accept other employment that will either impair her independence of judgment as to her official duties or employment or require her to disclose confidential information acquired by her in the course of her official duties. R.I. Gen. Laws § 36-14-5(b). She is prohibited 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, business associate, or any business by which she is employed or represents. R.I. Gen. Laws § 36-14-5(d). She may not disclose or use, for pecuniary gain, confidential information acquired by her in the course of and by reason of her official duties. R.I. Gen. Laws § 36-14-5(c). She 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. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if it is reasonably foreseeable that she or any family member or business associate, or any business by which she is employed or represents, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. R.I. Gen. Laws § 36-14-7(a). In the absence of any competition between the City and West Elmwood Development, and provided that the petitioner assists West Elmwood Development on her own time and without the use of public resources or confidential information, there is no indication that the petitioner's private employment or committee work will impair her independence of judgment or be in substantial conflict with her public duties representing and assisting the City. However, if it appears that the City will be in competition with West Elmwood Development, or with any of Brownfields Solutions LLC's clients, for federal funds or any other type of relief, such divided loyalty would implicate the aforementioned provisions of the Code of Ethics. Accordingly, the petitioner must decline to assist West Elmwood Development in any application for funds or relief where it is reasonably foreseeable that the application would compete with City-sponsored or endorsed applications. If such City applications come into competition with the petitioner's private clients, the petitioner is required to recuse from participating in the City's application because the Code prohibits the petitioner from taking any official action that is likely to result in a financial benefit or detriment to the petitioner's business associates. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(c) 36-14-5(d) 36-14-7(a) Keywords: Private Employment Business Associate (1) The word "brownfields" is a term used to describe a class of properties for which use and redevelopment is complicated by past use, generally involving environmental contamination.