Advisory Opinion No. 2004-30

Re: Jason Osenkowski

QUESTION PRESENTED

The petitioner, an Environmental Scientist employed by the Rhode Island Department of Environmental Management, a state employee position, requests an advisory opinion as to whether he may serve on his own time as an unpaid member of the Coventry Planning Commission, a municipal appointed position.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, an Environmental Scientist employed by the Rhode Island Department of Environmental Management, a state employee position, may serve on his own time as an unpaid member of the Coventry Planning Commission, a municipal appointed position.

The petitioner informs that he is an environmental scientist in the Groundwater and Wetlands Protection Program at the Rhode Island Department of Environmental Management (DEM). His employment duties at DEM include the following: (1) Reviewing applications seeking verification of wetlands’ presence and location of the edge; (2) reviewing applications concerning projects that may impact freshwater wetlands; (3) providing public education and outreach; and (4) reviewing wetlands-related public documents.

The petitioner informs that he accepted an appointment to the Coventry Planning Commission and attended his first official meeting on April 14, 2004. According to the petitioner, the Coventry Planning Commission is a municipal advisory body to the Coventry Town Council, the Town Manager, and the Director of Planning and Development on all matters concerning the physical growth and development of the town. See Coventry Home Rule Charter, Art. XIII, §13.10. In particular, the Commission is responsible for reviewing various proposed projects and determining their compliance with the Town’s Comprehensive Plan, ordinances and subdivision regulations. Id. at §13.13. Frequently, applicants for these projects are also required to obtain a DEM permit. As such, the petitioner, in his capacity as a member of the Coventry Planning Commission, would be in a position of advising a project applicant that a DEM permit is required and/or reviewing projects before the Planning Commission that have already received DEM permits.

Although DEM and the Coventry Planning Commission may have overlapping goals and objectives, the petitioner informs that his respective duties would be separate and distinct. In the event a matter involving a Coventry land project comes before DEM, the petitioner represents that he would not participate in the DEM review of that project. Moreover, he plans to serve as an member of the Planning Commission on his own time.

Under the Code of Ethics, a state employee 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 in the public interest. See R.I. Gen. Laws § 36-14-5(a).

A substantial conflict of interest occurs if he has reason to believe or expect that he or any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a). In addition, he may not accept other employment that will 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. See 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. See R.I. Gen. Laws § 36-14-5(d). He may not represent himself or any other person before any state or municipal agency of which he is a member or by which he 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 Coventry Planning 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 his duties in the public interest. In an analogous advisory opinion, the petitioner’s supervisor, the Chief of Permitting for the Office of Water Resources at DEM, asked whether he could accept an appointment as Chairperson of the Cranston Planning Commission. A.O. 99-12. There, the Commission opined, “[a] substantial conflict of interest is not apparent by the petitioner holding these positions which may only involve the other public entity, i.e., advising a project applicant that a DEM permit is required, reviewing a project that received a DEM permit for compliance with the Cranston Comprehensive Plan, or supervising the DEM permit review of a Cranston Planning Commission applicant, unless for some reason these matters impact the other public entity or the petitioner.” Id. Although the Commission allowed the Chief to serve simultaneously as the Chairperson of the Cranston Planning Commission, it cautioned him to be particularly vigilant in regard to the matters in which he participated. See also A.O. 2004-23 (opining that the petitioner could serve as a member of the Tiverton Conservation Commission while employed as a Senior Environmental Planner at DEM).

Here, provided that the petitioner serves as a member of the Coventry Planning Commission on his own time and without the use of public resources, there is no indication that his municipal activity would be in substantial conflict with his public duties as an Environmental Scientist at DEM. Further, given petitioner’s representations that he will not participate in any DEM review of Coventry land projects, it does not appear likely that the petitioner’s membership on the Coventry Planning Commission would impair his independence of judgment as to his official duties at DEM. For these reasons, the Code does not prohibit the petitioner from serving as a member of the Planning Commission while employed as an Environmental Scientist at DEM.

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 him from simultaneously holding these public positions. This opinion does not, and cannot, address whether the town charter or ordinances of Coventry, 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:

2004-23

2003-73

2003-51

2003-30

2000-76

99-12

99-7

95-98

Keywords:

Dual Public Roles