Advisory Opinion No. 2005-3

Re: Robert B. Holbrook

QUESTION PRESENTED:

The petitioner, a Commissioner of the Rhode Island Public Utilities Commission, a state appointed position, and also a member of the Town of East Greenwich Planning Board, a municipal appointed position, requests an advisory opinion regarding whether his simultaneous service with these two, public entities creates a conflict of interest prohibited by the Code of Ethics.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner's simultaneous service as a Commissioner of the Rhode Island Public Utilities Commission, a state appointed position, and as a member of the Town of East Greenwich Planning Board, a municipal appointed position.

The petitioner represents that he serves on the seven-person Planning Board for the Town of East Greenwich. According to the petitioner, the role of the Planning Board is to review development applications to ensure compliance with regulations designed to promote conformance to the Town's Comprehensive Community Plan and Zoning Ordinance. He states that as part of each application to the Planning Board the applicant must provide documentation from the Kent County Water Authority showing that there is an adequate water supply available. Without evidence of an adequate water supply, the Planning Board will generally not approve an application.

The petitioner also serves as a full-time, paid Commissioner on the Rhode Island Public Utilities Commission (RIPUC). According to the petitioner, the RIPUC is responsible for regulating public utilities including Kent County Water Authority. Specifically, the RIPUC has the authority to supervise, regulate and investigate Kent County Water Authority to ensure the existence of an adequate water supply. Should the RIPUC determine that a utility's plant or equipment is inadequate or insufficient, it may order that improvements or alterations be made.

The petitioner states the Kent County Water Authority appears to be facing challenges in its infrastructure and water supply such that further investigation by the RIPUC is likely. If the RIPUC determines that there is an insufficient water supply, then developers seeking relief from the East Greenwich Planning Board may be unable to obtain certification of adequate water supply from Kent County Water Authority. As an example, the petitioner sites to current, proposed construction at the former Rocky Hill Fairgrounds in East Greenwich for the construction of office buildings, a hotel, restaurants and 180 residential housing units that will require certification of adequate water supply.

The petitioner states that the Planning Board would likely deny an application for this development if Kent County Water Authority is unable to certify the water supply.

Based on these representations, the petitioner asks whether there exists a conflict of interest under the Code of Ethics for him to simultaneously serve on both the East Greenwich Planning Board and the Rhode Island Public Utilities Commission.

Under the Code of Ethics, a public official 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. R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). A public official will have an interest in substantial conflict with his official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, a family member, a business associate or employer. R.I. Gen. Laws § 36-14-7(a); Regulation 7001. R.I. Gen. Laws § 36-14-5(b) further provides that he may not accept other employment which would impair his independence of judgement or require him to disclose confidential information acquired in the course of his official duties. Additionally, the Code prohibits him 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, a business associate or employer. R.I. Gen. Laws § 36-14-5(d).

Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to simultaneous service as a member of the East Greenwich Planning Board and as a Commissioner of the Rhode Island Public Utilities Commission. 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 of Ethics. The petitioner's work at the RIPUC will have no financial impact on the East Greenwich Planning Board, and vice versa. The likelihood that RIPUC action relative to the Kent County Water Authority may impact the feasibility of applications before the East Greenwich Planning Board does not implicate the Code's conflict of interest provisions set forth in sections 5(a) and 5(d). While there is similarly no indication of a violation of the Code's section 5(b), which prohibits the acceptance of other employment which will either impair independence of judgment as to official duties or induce disclosure of confidential information, the petitioner is cautioned to remain mindful of this provision when he serves in each of his public roles.

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 East Greenwich, or any other state or local 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)

Regulation 7001

Related Advisory Opinions:

2001-66

2000-82

2000-56

2000-22

99-149

99-62

98-104

98-99

98-59

95-62

95-38

Keywords:

Dual public roles

Private employment