Advisory Opinion No. 2006-33 Advisory Opinion No. 2006-33 Re: Gary T. Tedeschi QUESTION PRESENTED The petitioner, the Richmond Zoning Enforcement Officer, a municipal appointed position, requests an advisory opinion as to whether he may seek or accept appointment as the Town Treasurer, given that he currently fills a vacancy in that position’s unexpired term. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Richmond Zoning Enforcement Officer, a municipal appointed position, may seek or accept appointment as the Town Treasurer, notwithstanding the fact that he currently fills a vacancy in that position’s unexpired term by appointment of the Town Council. The petitioner advises that since 2003 he has served as the Richmond Zoning Enforcement Officer, a part-time municipal position that consists of a ten hour work week. He informs that in April 2005 the Town Council appointed him to fill a vacancy in the Town Treasurer’s unexpired term. He represents that the Town Council advertised the vacancy, but there were no other qualified applicants. The petitioner further advises that the individual who resigned as Town Treasurer had been elected to the position. Upon expiration of its current term in November 2006, however, the position of Town Treasurer will be appointed by the Town Council. The petitioner seeks guidance as to whether he may seek or accept the Town Council’s appointment to the position of Town Treasurer after having served the balance of its unexpired term. 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). An official will have an interest in substantial conflict with his 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 he represents. R.I. Gen. Laws § 36-14-7(a). R.I. Gen. Laws § 36-14-5(b) prohibits a public official or employee from accepting 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(d) further provides that a public official may not use his office for pecuniary gain, other than provided by law, for himself, a family member, employer, business associate, or a business that he represents. Pursuant to Commission Regulation 36-14-5006, no elected or appointed official may accept an appointment by the body of which he or she is a member to any position which carries with it financial benefit or remuneration. The prohibition extends for one year after the termination of an official's membership on the public body. Here, the petitioner currently fills a vacancy in the position of Town Treasurer by appointment of the Town Council, in addition to his part-time position as the Zoning Enforcement Officer, to which he also was appointed by the Town Council. Given that the petitioner is not a member of the Town Council, Regulation 5006 does not prohibit him from seeking or accepting the position of Town Treasurer, irrespective of whether said position is appointed or elected. Further, sections 5(a) and 5(d) of the Code of Ethics do not create a bar to simultaneous service in the Town of Richmond in both capacities. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out an official's duty in the public interest. Based upon the distinct areas of responsibility exercised by each position, it is unlikely that the petitioner’s independence of judgment would be affected in either position by virtue of the fact that he also holds the other position. Absent additional factors, merely holding the two positions simultaneously would not constitute a substantial conflict of interest under the Code of Ethics. Code Citations : 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-5006 36-14-7(a) Related Advisory Opinions : 2002-51 98-153 97-126 97-42 Keywords : Appointing Authority Dual Public Roles