Advisory Opinion No. 2004-28

Re: Stephen R. Ucci, Esq.

QUESTION PRESENTED:

The petitioner, a member of the Johnston Zoning Board, a municipal appointed position, and private legal practitioner requests an advisory opinion as to whether he may provide legal counsel to the Johnston Housing Authority on an employment matter unrelated to zoning.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Johnston Zoning Board, a municipal appointed position, may provide legal counsel to the Johnston Housing Authority on an employment matter unrelated to zoning, provided he complies with the Code of Ethics as set forth below.

The petitioner is a member of the Johnston Zoning Board. The petitioner represents that he is an attorney with a private practice in Johnston, Rhode Island. The petitioner informs that for the last six years he has served as in-house counsel to Raytheon. The petitioner also represents clients in criminal, employment and real estate matters.

Under the Code of Ethics, a public official may not participate in a matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his public duties. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest is present if the official has reason to believe or expect that he, a member of his family, or any business associate will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. R.I. Gen. Laws § 36-14-7(a). Additionally, a public official may not accept other employment that would 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. R.I. Gen. Laws § 36-14-5(b). He is prohibited 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. R.I. Gen. Laws § 36-14-5(d). Finally, a public official may not enter into a contract with a state or municipal agency unless "the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded." R.I. Gen. Laws § 36-14-5(h). This section provides that "contracts for professional services which have been customarily awarded without competitive bidding shall not be subject to competitive bidding if awarded through a process of public notice and disclosure of financial details."

Id. Sections 5(a), (b) and (d) of the Code do not create an absolute bar to simultaneous service as an appointed member of a zoning board and as legal counsel to a municipal housing authority. 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 Commission concludes that simultaneous service in both positions would not present an inherent conflict of interest under the Code. It is unlikely that the petitioner’s involvement with the municipal housing authority would impact his responsibilities as a Zoning Board member and vice versa, given the different spheres of responsibilities that fall to those respective positions. See A.O. 97-28, A.O. 95-88. However, in the event that a matter involving the housing authority comes before the Zoning Board, the petitioner must recuse. Notice of recusal should be filed with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

Based upon the petitioner’s status as a public official, any municipal contract for his professional services must be awarded in accordance with Section 5(h) of the Code. See, e.g., A.O. 2002-24 (opining that a legislator serving as a State Senator could accept employment as legal counsel to a municipal housing authority, provided that any such contract for professional services was awarded through a process of public notice and disclosure of financial details). The professional services exception of section 5(h) normally covers contracts for legal, medical, architectural or accounting services. See A.O. 2000-35.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(e)

36-14-5(f)

36-14-5(h)

36-14-7(a)

36-14-5008

Related Advisory Opinions:

2003-19

2003-6

2002-24

2001-74

2001-1

2000-35

99-120

99-23

99-10

98-141

98-33

98-25

98-56

98-2

97-112

97-97

97-28

97-7

96-88

96-68

96-62

95-88

Keywords:

Business Associate

Contracts

Dual Public Roles

Private Employment

Professional Service Contracts