Advisory Opinion No. 2003-72

Re: Christopher Duhamel, P.E., P.L.S.

QUESTION PRESENTED

The petitioner, a member of the Westerly Town Council, a municipal elected position, requests an advisory opinion regarding whether his private employment as a professional engineer and land surveyor prevents him from participating in the Town's efforts to comply with a State law requiring minimum housing for persons of low and moderate income.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Westerly Town Council, may participate in the Town's efforts to comply with a State law requiring minimum housing for persons of low and moderate income, notwithstanding his private employment as a professional engineer and land surveyor.

The petitioner is a member of the Westerly Town Council. He represents that the Town of Westerly has formed a task force to propose amendments to the Westerly Comprehensive Plan in order to address the requirements of R.I. Gen. Laws § 45-53-1 et seq. (the "Rhode Island Low and Moderate Income Housing Act," or herein, "the Act") whereby the Town is required to have a plan to ensure that low and moderate income housing represents at least ten percent of available housing units. Ultimately, the Westerly Town Council will be asked to vote on the amended Comprehensive Plan.

The petitioner represents that he is privately employed by ATS Survey, Inc. and DiPrete Engineering Assoc., Inc. as a land surveyor and professional engineer. He states that his employers perform work for developers that have proposed projects under the Comprehensive Permit process established by the Act, and that one such project has been submitted in Westerly. The petitioner asserts that he has avoided any participation in that project and that he receives no compensation in relation to it. Given these representations, the petitioner asks whether the Code of Ethics restricts his ability to participate in the Town's amendment of its Comprehensive Plan to comply with the Act.

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 and employment in the public interest. R.I. Gen. Laws § 36-14-5(a). The petitioner will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. R.I. Gen. Laws § 36-14-7(a). Section 36-14-5(d) prohibits the petitioner 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.

It does not appear that the Town's amendment of its Comprehensive Plan will result in a direct financial gain or loss to the petitioner or his employers. The petitioner has avoided private work involving comprehensive permitting in Westerly. Further, the petitioner's private employer is not likely to be directly impacted by the Town's amended Comprehensive Plan. Rather, it is the developer that retains the petitioner's private employer that is most likely to be impacted by a Comprehensive Plan that addresses requirements for low and moderate income housing development. This potential financial impact on the petitioner's employer's business associate is too remote to rise to the level of a substantial conflict of interest that is prohibited by the Code of Ethics.

Based on the foregoing, the petitioner may participate in the Town's amendment of its Comprehensive Plan to comply with the Rhode Island Low and Moderate Income Housing Act.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

2002-71

99-39

96-119

92-13

86-26

Keywords:

Private employment