Advisory Opinion No. 2005-48 Re: Michaela K. Brockmann QUESTION PRESENTED: The petitioner, the Executive Director of the Rhode Island Underground Storage Tank Financial Responsibility Fund Review Board, a state appointed position, requests an advisory opinion regarding whether the Code of Ethics permits her to accept membership to the Board of Directors of the National Leaking Underground Storage Tank program, a private, national organization. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Executive Director of the Rhode Island Underground Storage Tank Financial Responsibility Fund Review Board, a state appointed position, may accept membership to the Board of Directors of the National Leaking Underground Storage Tank program, a private, national organization. The petitioner represents that she is the Executive Director of the Rhode Island Underground Storage Tank Financial Responsibility Fund Review Board (the “RIUST Review Board”). She informs that the RIUST Review Board is a quasi-public entity whose purpose is to oversee the state fund that subsidizes the cost for cleanups resulting from leaking underground storage tanks. She represents that it is financed by a $.01 cent tax within the special motors fuel tax. She informs that she was appointed Executive Director by the members of the RIUST Review Board, whose members hold state appointed positions. As Executive Director for the last nine years, she informs that it has been her responsibility to manage and direct activities for both the staff of the RIUST Review Board and its outside consultants. She states that she assists in developing and maintaining the RIUST Review Board’s $4.5 million dollar budget. She represents that she coordinates all RI UST Review Board meetings and that she assures that eligible claims are paid in a timely and efficient manner. The petitioner represents that about two years ago she served on an advisory committee that provided recommendations on the formation of the National Leaking Underground Storage Tank program (the “NatLUST”). She informs that she was not paid to serve in this position. Since that time, she informs that the organization has become more formalized. She represents that NatLUST is now classified by the IRS as a 501(c)(3) corporation and that it is being organized. To that end, she informs that she was recently asked by NatLUST’s Executive Director to sit on the Board of Directors of NatLUST. She informs that the enabling statute of the RI UST Review Board does not have any language prohibiting such a membership. Nonetheless, the petitioner, out of an abundance of caution, requests an advisory opinion on whether such activity is prohibited by the Code of Ethics. According to the petitioner, NatLUST’s mission is to provide immediate liquidity to UST owners, known as “Responsible Parties” or “RPs.” She states that NatLUST provides low-cost liquidity to help state cleanup funds achieve their statutory goals, which typically include meeting the EPA’s financial responsibility regulations, as well as promoting improved public health and a cleaner environment. She maintains that such liquidity is needed because certain state administered leaking underground storage tank (“LUST”) funds do not have sufficient revenues to reimburse claims in a timely manner, which results in a RPs or their environmental consultants having to wait months or even years for reimbursement causing cash flow problems for RPs. She represents that these circumstances contribute to a slowdown in the pace of LUST clean ups and that the failure to clean up contaminated sites in a timely manner can result in increased public health risks and higher costs to the state sponsored cleanup fund. The petitioner informs that NatLUST does not operate in Rhode Island. She also represents that there is a possibility that the members of the Board of Directors of NatLUST will receive a fee for their service, which would be determined by 1/8th of the 1% of the total funds. She informs that this percentage will be divided among the five Board members and that currently there is one million dollars in the fund. The petitioner informs that her travel expenses to attend meetings may be reimbursed as well. As the bylaws of the organization have not yet been written, the petitioner represents that she cannot provide the Commission with more details on these benefits. The petitioner maintains that her membership on the Board of Directors of NatLUST would require a time commitment of one annual meeting per year and several phone calls. She informs that she will accomplish these responsibilities on her own personal time. Under the Code of Ethics, a public official may not accept other employment that will either impair the independence of her judgment as to her official duties or employment, or that would require her to disclose confidential information acquired in the course of her official duties. R.I. Gen. Laws § 36-14-5(b). In addition, 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). 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 her activity, to herself, a family member, a business associate, or any business by which she is employed or which she represents. R.I. Gen. Laws § 36-14-7(a); Regulation 36-14-7001. The Code of Ethics also provides that a public official may not use her office to obtain financial gain for herself, a family member, a business associate, an employer, or any business that she represents. R.I. Gen. Laws § 36-14-5(d). The Code of Ethics prohibits the petitioner from representing herself, or any other person, or acting as an expert witness before any state agency by which she is employed. R.I. Gen. Laws § 36-14-5(e)(1)-(3). Furthermore, a public official must recuse herself from participating in a matter in which her business associate appears before the state agency by which she is employed. R.I. Gen. Laws § 36-14-5(f). In previous advisory opinions, the Commission has given its approval to public employees to accept outside employment provided that (1) the public employee’s official duties did not directly relate to her private employment, (2) the public employee completed such work outside of her normal working hours, and (3) the public employee did not appear before her own agency. See, e.g., A.O. 2004-24 (opining that a member of City of Cranston Fire Department, a municipal employee position, and an Assistant Deputy State Fire Marshal, a state appointed position, may provide consulting services relating to fire safety and code compliance outside of Cranston). Here, the petitioner represents that her membership on the Board of Directors of NatLUST will not relate to her official duties as Executive Director of RI UST Review Board. She informs that NatLUST and the RI UST Review Board share similar subject matter; however, she represents that Rhode Island does not participate in NatLUST and that she is unaware of any future plans to propose legislation that would enable NatLUST to operate here. Accordingly, she maintains that while these entities are similar, they are in no way related to each other and her responsibilities to each are likewise unrelated. Additionally, the petitioner informs she will complete her membership duties related to NatLUST on her own time without public resources, and that she will not appear before the RI UST Review Board. The petitioner’s representations provide no indication that her membership on the Board of Directors of NatLUST would be in substantial conflict with, or impair her judgment as to, her public duties as the Executive Director of the RI UST Review Board. Accordingly, the Commission opines that, provided that the petitioner adheres to her representations, and does not use her position to gain special access to confidential information maintained by the RI UST Review Board or to solicit work for herself, the petitioner’s service on the Board of Directors of NatLUST would be in compliance with the Code of Ethics. The petitioner is advised that this opinion solely addresses the Code of Ethics and does not, and cannot, address whether other policies or regulations, or any other statutes or rulings prohibit such simultaneous employment. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-5(e)(1)-(3) 36-14-5(f) 36-14-7(a) Regulation 36-14-7001 Related Advisory Opinions: 2004-24 2003-67 2003-51 2003-28 Keywords: Private employment