Advisory Opinion No. 2005-33 Re: Robert Silva, Esq. QUESTION PRESENTED: The petitioner, a member of the Town of Middletown Economic Development Advisory Committee, a municipal appointed position, requests an advisory opinion regarding whether or not the Code of Ethics would prohibit his simultaneous service as a member of the Town of Middletown Zoning Ordinance Review Committee, also a municipal appointed position. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Town of Middletown Economic Development Advisory Committee (“EDAC”), a municipal appointed position, may simultaneously serve as a member of the Town of Middletown Zoning Ordinance Review Committee (“ZORC”). The petitioner represents that for the past thirty-nine (39) years he has been a licensed practicing attorney in the State of Rhode Island engaged in the general practice of law. The petitioner advises that in his private practice he represents clients before the Town of Middletown Town Council, Zoning and Planning Boards and other similar agencies. The petitioner informs that he has been a member of the EDAC for a number of years and was recently appointed to the ZORC. The petitioner further informs that he was appointed to both positions by the Town Council. The petitioner states that the EDAC meets periodically to deal with economic issues referred to it by the Town Council, such as tax incentive programs. He advises that the ZORC reviews existing zoning ordinances and makes recommendations as to whether or not any changes should be made to same. In a telephone conversation occurring subsequent to his letter requesting an advisory opinion, the petitioner represented that he does not have any current business associates that would benefit as a result of any recommendations made by either Committee to the Town Council. The petitioner represented that if a situation ever did arise whereby a business associate would be the recipient of any benefit as a result of any matter before either Committee, he would recuse himself. Based upon these representations, the petitioner seeks guidance from the Commission as to whether the Code of Ethics prohibits him from simultaneously serving on both Committees. Under the Code of Ethics, a public official or 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. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if it is reasonably foreseeable that the petitioner or any family member or business associate, or any business by which he is employed or represents, 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). 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. 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). Initially, the Commission concludes that the aforementioned provisions of the Code of Ethics do not create an absolute bar to simultaneous service as a member of the EDAC or the ZORC. Rather, the Code requires a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out his duties in the public interest. Since the petitioner’s duties as a member of the EDAC and as a member of the ZORC are separate and distinct, there is no indication that serving in both capacities would impermissibly impair the petitioner's independence of judgment as to his public responsibilities. Nor is there any indication that the simultaneous service, in and of itself, creates a substantial conflict with respect to carrying out duties in the public interest. Absent some direct financial nexus between the petitioner’s two public roles, no inherent conflict of interest would preclude such simultaneous service. The petitioner is cautioned, however, that if any matter comes before either Committee that may financially impact a business associate, the petitioner should seek further guidance from the Commission or recuse in accordance with R.I. Gen. Laws § 36-14-6. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-6 36-14-7(a) Related Advisory Opinions: 2003-61 2002-63 2002-65 2002-55 Keywords: Dual Public Roles