Advisory Opinion No. 2007-39 Advisory Opinion No. 2007-39 Re: Mary E. Bray QUESTION PRESENTED The petitioner, a member of the Pawtucket City Council, a municipal elected position, and also a member of the Rhode Island Public Utilities Commission (“RIPUC”), a state appointed position, requests an advisory opinion regarding whether she may participate in the City Council’s vote on a union contract, given that some members of the union work for the Pawtucket Water Supply Board, an entity that is regulated by the RIPUC. 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, and also a member of the Rhode Island Public Utilities Commission (“RIPUC”), a state appointed position, may participate in the City Council’s vote on a union contract, notwithstanding that some members of the union work for the Pawtucket Water Supply Board, an entity that is regulated by the RIPUC. The petitioner is a member of the Pawtucket City Council and is also a Commissioner of the RIPUC, a state agency that, among other things, regulates water supply utilities including the Pawtucket Water Supply Board (“PWSB”). The petitioner previously received an advisory opinion from this Commission advising her that such simultaneous service was not prohibited by the Code of Ethics. See A.O. 2005-38. Since receiving that opinion the petitioner has, out of an abundance of caution, recused from RIPUC matters that financially impact the PWSB. She represents that she will continue such recusal. The petitioner represents that some employees of the PWSB are members of Local 1012 of Council 94 of the American Federation of State, County and Municipal Employees (“Local 1012”). The City Council is scheduled to vote on ratification of a contract with Local 1012, and the petitioner asks whether her association with the RIPUC limits her ability to participate in the City Council’s vote. 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 or employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). A public official will have an interest in substantial conflict with her official duties if she has a reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of her official activity, to herself, a family member, a business associate, an employer, or any business which she represents. See R.I. Gen. Laws § 36-14-7(a). R.I. Gen. Laws § 36-14-5(d) prohibits the petitioner 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, business associate, or any business by which she is employed or represents. R.I. Gen. Laws § 36-14-2(3). A “business associate” is defined as any individual or business entity joined with a public official "to achieve a common financial objective." R.I. Gen. Laws § 36-14-2(3). Here, given the facts represented by the petitioner, the City Council’s vote on the union contract will have no financial impact on herself, her family, her employer or her business associates. Furthermore, there is no indication that the petitioner has or will use any confidential information obtained through her association with the RIPUC to benefit herself, her family, her employer or her business associates. The petitioner is not a business associate of the RIPUC, the PWSB, or the City of Pawtucket, notwithstanding her status as a Commissioner of the RIPUC and as a member of the City Council, since the term “business associate” does not include public entities such as the RIPUC, the PWSB or the City of Pawtucket. See A.O. 2005-31 (Town of Portsmouth is not a "business," nor is it a "business associate" of the Town's Director of Business Development); A.O. 2002-55 (term "business" as used in the Code of Ethics does not include municipal corporations such as the Town of Richmond). See also A.O. 2003-61 (Code of Ethics does not consider relationship between public official and public body to be that of "business associates"); A.O. 2002-63 (relationship between petitioner and RIDEM as parties to real estate transaction not that of "business associates" under the Code); A.O. 97-17 (finding, inter alia, that the definition of "business" does not extend to public entities such as the Warren Town Council or the Bristol County Water Authority). Based on the above, and in the absence of any other facts that would trigger the any of the prohibitions contained in the Code of Ethics, it is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner from participating in the City Council’s vote to ratify the contract with Local 1012. Code Citations : 36-14-2(3) 36-14-5(a) 36-14-5(d) 36-14-7(a) Keywords : Business Associate