Advisory Opinion No. 2005-41

Re:  Lisa W. Bryer

QUESTION PRESENTED:

The petitioner, a prospective applicant for the position of Jamestown Town Administrator, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics would prohibit her from serving in that position given that her husband is the Jamestown Fire Chief.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a prospective applicant for the position of Jamestown Town Administrator, a municipal appointed position, is not prohibited by the Code of Ethics from serving in that position, notwithstanding her husband's employment as the Jamestown Fire Chief.

The petitioner is currently employed full-time as the Town Planner for the Town of Jamestown.  She represents she wishes to apply for the currently open position of Jamestown Town Administrator, a full-time position appointed by the Town Council. Among the Town Administrator's duties, according to the petitioner, is presenting a budget to the Town Council each year.  The Town Council then holds budget hearings, makes amendments and adopts a final budget for presentation to the public for vote at a yearly Financial Town Meeting.

Included within this budget each year are funds to cover some of the operating and capital expenses of the Jamestown Fire Department.  The Jamestown Fire Department is, according to the petitioner, a private non-profit corporation that operates independently of the Town through both private funding and the aforementioned Town budget process.  The petitioner advises that her spouse serves as the Jamestown Fire Chief.  Given all of these representations, the petitioner asks whether the Code of Ethics prohibits her application and, if appointed, service as the Jamestown Town Administrator.

Under the Code of Ethics, a public official or employee 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.  See R.I. Gen. Laws § 36-14-5(a).  An official will have an interest in substantial conflict with her official duties if it is likely 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, employer, business associate, or a business that she represents.  See R.I. Gen. Laws § 36-14-7(a). Finally, R.I. Gen. Laws § 36-14-5(d) provides that a public official may not use her office for pecuniary gain, other than provided by law, for herself, a family member, employer, business associate, or a business that she represents.

These provisions of the Code of Ethics do not create a bar to the petitioner's service as the Jamestown Town Administrator by reason of her husband's employment as the Jamestown Fire Chief. Rather, the Code requires a matter by matter determination of whether substantial conflicts of interest prevent the petitioner's performance of distinct official duties.  Such conflicts may be present during the budget process, however the state of facts at present are too hypothetical for the Commission to offer formal guidance as to the existence and avoidance of such conflicts.  Currently, the petitioner is merely a potential applicant for the position of Town Administrator. In the event that the petitioner applies for the position, and assuming she receives and accepts the appointment, she may return to the Commission to obtain further guidance on these and other issues.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2002-44

2001-58

2000-63

2000-61

98-88

98-37

97-35

97-19

96-69

95-72

95-44

95-34

95-15

Keywords:

Budgets

Family: public employment