Advisory Opinion No. 2005-38

Re:  Mary E. Bray

QUESTION PRESENTED:

The petitioner, a member of the Pawtucket City Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics permits her simultaneous service as a member of the Rhode Island Public Utilities Commission, a state appointed position.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Pawtucket City Council, a municipal elected position, may simultaneously serve in that position and as a member of the Rhode Island Public Utilities Commission, a state appointed position.

The petitioner represents that she is an elected member of the Pawtucket City Council.  She states that she was recently appointed and confirmed to serve as a full-time, paid member of the Rhode Island Public Utilities Commission (RIPUC).  The RIPUC, according to information posted on its web site, serves as a quasi-judicial tribunal with jurisdiction, powers, and duties to implement and enforce standards of conduct for electric distribution companies.  The RIPUC also holds investigations and hearings involving the rates, tariffs, tolls, and charges, and the sufficiency and reasonableness of facilities and accommodations of railroad, ferry boats, gas, electric distribution, water, telephone, telegraph, and pipeline public utilities, the location of railroad depots and stations, and the control of grade crossings, the revocation, suspension or alteration of certificates issued pursuant to §39-19-4 (community antenna television systems), appeals under §39-1-30 (zoning review), petitions under §39-1-31 (eminent domain), and proceedings under §39-1-32 (emergency powers).

In particular, the RIPUC hears applications for rate increases from public water companies, including the Pawtucket Water Supply Board (PWSB). The petitioner states that the PWSB is a department within the City of Pawtucket that has public utility status because it supplies water to Central Falls and part of Cumberland as well as Pawtucket.  The petitioner states that she intends to recuse from RIPUC matters that will financially impact the PWSB.

Given these facts and representations, the petitioner asks whether there exists a conflict of interest under the Code of Ethics for her to simultaneously serve on both the Pawtucket City Council and the Rhode Island Public Utilities Commission.

Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her 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 her 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 she may not accept other employment which would impair her independence of judgment or require her to disclose confidential information acquired in the course of her official duties.  Additionally, the Code prohibits her 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, a business associate or employer.  R.I. Gen. Laws § 36-14-5(d).

The Commission had occasion to consider these provisions in a similar question raised earlier this year.  In A.O. 2005-3, the Commission opined that the Code of Ethics did not prohibit a member of the RIPUC from simultaneously serving on the East Greenwich Planning Board.  This result was based on the lack of any indication that the petitioner's service on either entity would result in a financial impact on the other, or in the improper use of confidential information.

Consistent with that prior opinion, in the instant matter 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 Pawtucket City Council and as a Commissioner of the Rhode Island Public Utilities Commission.  Rather, a matter by matter evaluation and determination must be made as to whether substantial conflicts of interest exist with respect to carrying out the petitioner's duties 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.  There is no indication that the petitioner's work at the RIPUC will have an impermissible financial impact on the City of Pawtucket and its City Council, and vice versa. 

This is particularly true given the petitioner's stated intention to recuse from matters concerning the Pawtucket Water Supply Board.  While there is similarly no evidence of a violation of the Code's section 5(b), which prohibits the acceptance of other employment which will either impair independence of judgment or induce disclosure of confidential information, the petitioner is cautioned to remain mindful of this provision when she serves in each of her public roles.  If any particular matter pending before either body presents such a conflict, the petitioner should seek further advice from the Commission or recuse in accordance with R.I. Gen. Laws § 36-14-6.

The petitioner is advised that this opinion solely addresses the application of the Code of Ethics and whether the Code prohibits her from simultaneously holding these public positions. This opinion does not, and cannot, address whether any city charter or ordinance, or any other statute, rulings or policy prohibits such simultaneous service.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-6

36-14-7(a)

Regulation 7001

Related Advisory Opinions:

2005-3

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