Advisory Opinion No. 2004-23

Re: Lisa McGreavy

QUESTION PRESENTED:

The petitioner, a Senior Environmental Planner employed by the Rhode Island Department of Environmental Management (DEM), requests an advisory opinion as to whether she may serve on her own time as an unpaid member of the Tiverton Conservation Commission, a municipal appointed position.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Senior Environmental Planner employed by DEM, may serve on her own time as an unpaid member of the Conservation Commission, a municipal appointed position.

The petitioner informs that her employment duties at DEM include the following: (1) serving as staff coordinator for the Water Quality/Wetland Restoration Team; (2) serving as staff coordinator for the Individual Sewage Disposal Systems Designer Licensing Review Panel; (3) serving as program coordinator for the Rhode Island Aqua Fund; (4) researching permit status, policy issues, and municipal/state permitting procedures; (5) providing public education and outreach; and (6) performing miscellaneous administrative tasks. Though not enumerated as one of her job responsibilities, the petitioner advises that she has been asked to review requests for funding submitted to DEM (i.e., grant applications). In the event that the Conservation Commission submits a request for funding to DEM, the petitioner represents that she would not participate in the corresponding review process. The petitioner represents that her research regarding permit status is purely ministerial. She does not assess permit applications, make recommendations on permit applications, or issue permits.

According to the petitioner, the Conservation Commission is a municipal advisory body to the Tiverton Town Council and to all Town agencies on conservation matters, including, but not limited to, protecting surface water and groundwater, monitoring the environmental impact of the Town landfill and solid waste management and monitoring regulatory compliance. See Tiverton Home Rule Charter, Art. X. Although both DEM and the Conservation Commission have similar goals and objectives, the petitioner informs that her respective duties would be separate and distinct. The petitioner represents that she would serve on her own time as an unpaid member of the Conservation Commission.

Under the Code of Ethics, a state employee may not participate in any matter in which she has a financial interest which is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if she has reason to believe or expect that she or any family member or business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. See R.I. Gen. Laws § 36-14-7(a). In addition, she 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. See 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. See R.I. Gen. Laws § 36-14-5(d). She may not represent herself or any other person before any state or municipal agency of which she is a member or by which she is employed. See R.I. Gen. Laws §§ 36-14-5(e)(1) and (2).

Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to simultaneous service as an employee of DEM and as an appointed member of the Conservation Commission. Rather, those provisions require a case by case evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out her duties in the public interest.

Here, provided that the petitioner serves as a member of the Conservation Commission on her own time and without the use of public resources, there is no indication that her municipal activity would be in substantial conflict with her public duties as a Senior Environmental Planner at DEM. Further, given petitioner’s representations that she will not participate in any DEM review of Conservation Commission applications, permits, or requests for funding, it does not appear likely that the petitioner’s membership on the Conservation Commission would impair her independence of judgment as to her official duties at DEM. For these reasons, the Code does not prohibit the petitioner from serving as an unpaid member of the Conservation Commission while employed as a Senior Environmental Planner at DEM.

The petitioner is cautioned, however, against using confidential information obtained through her position as a Senior Environmental Planner at DEM to obtain financial gain for the Conservation Commission. Furthermore, as specific matters arise that raise potential conflicts of interest, the petitioner is urged to seek further and specific advice from the Ethics Commission. Finally, the petitioner is advised that this opinion solely addresses whether the Code of Ethics prohibits her from simultaneously holding these public positions. This opinion does not, and cannot, address whether the town charter or ordinances of Tiverton, DEM policies or regulations, or any other statutes, rulings or policies prohibit such simultaneous service.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-7(a)

36-14-5(e)

Related Advisory Opinions:

2003-73

2003-51

2003-30

2000-76

99-12

99-7

95-98

Keywords:

Dual Public Roles