Advisory Opinion No. 2005-45 Re: Michael P. Robinson QUESTION PRESENTED: The petitioner, a member and Chairman of the East Providence Planning Board, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics permits his simultaneous service as a member of the East Providence Waterfront Special Development District Commission, a state appointed position. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member and Chairman of the East Providence Planning Board, a municipal appointed position, may simultaneously serve as a member of the East Providence Waterfront Special Development District Commission, a state appointed position. The petitioner represents that he has served as a member of the East Providence Planning Board (the “Planning Board”) since 2001 and that he has served as its Chairman for approximately one year. He informs that the Planning Board exists pursuant to the City Charter and is subject to the City’s ordinances. He states that the Planning Board has five voting members and three alternates. He informs that the majority of the Planning Board’s work involves reviewing and approving subdivision and land development projects occurring within East Providence. He states that the Planning Board makes recommendations to the City Council for proposed amendments to the East Providence’s zoning ordinances, zoning maps, and Comprehensive Plan. He informs that the Planning Board is also responsible for modifying and amending the rules and regulations associated with the Land Development and Subdivision Review Regulations, and that the Planning Board makes recommendations to the City Council regarding a capital program and proposed dispositions of city-owned property. The petitioner informs that the Planning Board is responsible for providing advisory opinions on development to the East Providence Waterfront Special Development District Commission (the “Waterfront Commission”). He informs that that the Planning Board rarely issues advisory opinions and that that it has issued less than ten opinions during his four years of service. Approximately six months ago, the petitioner informs that he was appointed by the Honorable Governor Donald Carcieri to the Waterfront Commission. He represents that this position is subject to the advice and consent of the Rhode Island Senate and that his appointment was submitted to the Senate during the last legislative session and was not confirmed. He states that his appointment will likely require resubmission by the Governor to the Senate in the next legislative session. The petitioner represents that concerns about a possible conflict of interest were expressed regarding his appointment given that he would potentially hold dual public positions. Accordingly, the petitioner informs that he is seeking an advisory opinion out of an abundance of caution to determine whether a conflict of interest exists under the Code of Ethics if he simultaneously serves on both the Planning Board and the Waterfront Commission. The petitioner represents that the Waterfront Commission was created by the General Assembly in 2003. He informs that the Waterfront Commission is responsible for adopting, implementing, and administering a plan of development for the East Providence Waterfront District. He further informs that the Waterfront Commission is responsible for developing design plans and regulations, for reviewing and approving all public and private sector development plans, for improvements in conformance with Design and Development Regulations, and for overseeing the design review process which includes oversight on materials and design details including windows, doors, street landscaping, lighting, and signage. The petitioner informs that there are approximately nine to ten members of the Waterfront Commission and that many of the members are not voting members. He represents that he was appointed to a voting member position on the Waterfront Commission. He states that there are currently two openings on the Waterfront Commission and that he is one of two appointments that were provided to the Senate. He represents that he is the only appointee who is also a member of the Planning Board. If his appointment to the Commission is confirmed, the petitioner represents that he will recuse himself from participating in any matter before the Planning Board related to the Waterfront Commission and that he will likewise recuse himself from any matter before the Waterfront Commission related to the Planning Board. The petitioner informs that he will recuse himself from actions taken by both the Planning Board and the Waterfront Commission regarding advisory opinions sought regarding the Waterfront Commission. The petitioner represents that he can fairly and honestly continue his service on the Planning Board while serving on the Waterfront 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). 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. Pursuant to section 36-14-5(b) of the Code of Ethics, the petitioner may not accept other employment which would impair his independence of judgment or require him to disclose confidential information acquired in the course of his official duties. Additionally, the Code of Ethics prohibits the petitioner 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). On numerous occasions, the Commission has considered these provisions in similar situations, including within several advisory opinions issued earlier this year. See, e.g., A.O. 2005-3 (opining that the petitioner may simultaneously serve 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); 2005-33 (opining that the petitioner may simultaneously serve as a member of the Town of Middletown Economic Development Advisory Committee, a municipal appointed position, and as a member of the Town of Middletown Zoning Ordinance Review Committee, a municipal appointed position); 2005-38 (opining that the petitioner may simultaneously serve as a member of the Pawtucket City Council, a municipal elected position, and as a member of the Rhode Island Public Utilities Commission, a state appointed position). In past advisory opinions, the Commission has opined that the Code of Ethics does not create an absolute bar to simultaneous service on a municipal and state governmental entity. Rather, the Commission has determined that a matter by matter evaluation and determination must be made as to whether substantial conflicts of interest exist with respect to the petitioner carrying out the his duties in the public interest. In particular, the Commission has considered whether the petitioner’s service on either entity would result in an impermissible financial impact and whether the petitioner’s independence of judgment would be impaired as to his public responsibilities. Here, based on the petitioner’s representations, there is no indication that his simultaneous service on the Planning Board and Waterfront Commission will violate the Code of Ethics. Absent some direct financial nexus between the petitioner’s two public roles, no inherent conflict of interest would preclude his simultaneous service. Furthermore, based on the petitioner’s representations, he will recuse himself from matters before either entity that involved the other entity of which he is a member. The Commission advises the petitioner to seek further advice from the Commission or to recuse himself in accordance with R.I. Gen. Laws § 36-14-6 if a particular matter pending before either entity triggers such provisions of the Code of Ethics. 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 East Providence Town Charter or ordinances of East Providence, 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) 36-14-6 36-14-7(a) Regulation 7001 Related Advisory Opinions: 2005-38 2005-33 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