Advisory Opinion No. 2007-50

Amended

Advisory Opinion No. 2007-50

Re: John Michael Karmozyn, Jr.

QUESTION PRESENTED:

The petitioner, a member of the Burrillville Town Council (“the Town Council”), a municipal elected position, requests an advisory opinion as to whether he is prohibited by the Code of Ethics from participating in Town Council discussions and voting on matters surrounding the funding, construction, and location of a Senior Center in the Town of Burrillville, given that he is a member of the Burrillville Senior Citizens’ Association (“the BSCA”) and further, has been appointed by the Town Council as “Town Council liaison” to the Senior Citizen Center Facility Study Committee (“SCCFSC”), a committee within the BSCA.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Burrillville Town Council (“the Town Council”), a municipal elected position, is not prohibited by the Code of Ethics from participating in Town Council discussions and voting on matters surrounding the funding, construction, and location of a Senior Center in the Town of Burrillville,  notwithstanding his general membership in the Burrillville Senior Citizens’ Association (“the BSCA”), nor his special designation within the Town Council as “Town Council liaison” to the Senior Citizen Center Facility Study Committee (“SCCFSC”).

The petitioner represents that he currently serves on the Burrillville Town Council.  He is also a member of the Burrillville Senior Citizens’ Association.  The petitioner states that the BSCA is comprised of approximately 200 plus members.  The petitioner further states that while he himself is an active member, he is not an officer in the BSCA, nor is he in any kind of leadership position within the organization, nor is he in a position that would allow him to affect the financial objectives of the organization; rather, he states that he is simply an ordinary member with no greater powers or privileges than any other member of the BSCA. 

The petitioner states that the BSCA has recently been lobbying the Town Council to locate a site and provide funding for the construction of a Senior Center in the Town of Burrillville, the primary purpose of which would be to house the BSCA.  To this end, a committee within the BSCA called the Senior Citizen Center Facility Study Committee (“the SCCFSC”) has been formed.  The petitioner represents that the SCCFSC was formed to review the ideas and planning for a Senior Center and to determine whether a particular property can accommodate the center and other proposed purposes for the site.   The petitioner is not himself a member of the SCCFSC sub-committee, nor does he participate in any of their actions. 

The petitioner further provides that he was appointed by the Town Council as “Town Council liaison” to the Senior Citizen Center Facility Study Committee within the BSCA. 

He states that in his position as “Town Council liaison” he familiarizes himself with the activities of the SCCFSC and reports back upon them to the Town Council.  He represents that all Burrillville Town Council members serve as liaisons to various boards, commissions, and civic organizations within the town of Burrillville.   He articulates that he does not represent the BSCA before the Town Council in any capacity, but that rather, the President of the BSCA represents that organization before the Town Council.  He further states that he does not speak for or argue on behalf of the BSCA in front of the Town Council at any time.

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.  See R.I. Gen. Laws § 36-14-5(a).  An official will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official's actions, to the official, a family member, a business associate, an employer, or any business which the public official represents.  See R.I. Gen. Laws § 36-14-7(a).

Thus, if petitioner is considered a “business associate” of the BSCA, he must recuse from Town Council matters involving the proposed Senior Center; however, if he is not a “business associate” of the BSCA, barring any other relationship with the BSCA that would implicate the Code of Ethics, he need not recuse.  See A.O. 2007-45 (opining that, as the petitioner was not an officer in any of the political organizations of which he was a member, nor in any other leadership position within the organizations, nor in any way able to affect the financial objectives of the organizations, he was not a “business associate” of those organizations such that §§ 5(a) and 7(a) would be implicated).

In this instance, the petitioner represents that he is not an officer or in any other kind of leadership position in the BSCA that would allow him to affect that organization’s financial objectives.  Thus, he need not recuse from participation in Town Council matters involving the proposed Senior Center, based on these provisions of the Code, as his mere membership in the BSCA does not constitute a business association under the Code of Ethics.  See A.O. 2002-06 (opining that mere membership in the Chamber of Commerce does not rise to the level of a business association that would trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(f), and thus, Westerly Town Councilors who were members, but not officers, of the Greater Westerly-Pawcatuck Chamber of Commerce were not prohibited from voting on the granting of a tax exemption for the Chamber of Commerce); A.O. 96-54 (in which the Commission concluded that Town of Westerly Zoning Board members, who were also members of the YMCA, could participate in matters concerning rezoning for the YMCA, based upon the fact that mere membership, without the ability to affect the YMCA’s financial objectives, did not rise to the level of a “business association” requiring recusal); A.O. 95-59  (opining that a Smithfield School Committee member was permitted to vote to allow an organization to use school facilities, notwithstanding the member’s association with that organization, provided that the member was not deemed a “business associate” of the organization due to an ability to affect the organization’s financial objectives). 

Additionally, under §§ 5(a) and 7(a), the petitioner may not participate in any matter in which he has a reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his actions, to himself. See R.I. Gen. Laws §§ 36-14-5(a) and 7(a).  In this instance, the petitioner is one of approximately 200 members of the BSCA that could potentially be affected; the Commission has previously concluded that town council members may participate in matters in which they would be affected to no greater or lesser extent than all other members of a significant and definable class.  See A.O. 2005-22 (opining that an Exeter Town Councilor may participate and vote on a proposed tax freeze ordinance which may be available to married couples when the older spouse reaches 65 years of age, notwithstanding that his spouse was 65 years of age and he could benefit from the ordinance if passed, as he was one of 250-300 people likely to be affected, and thus fell within the 7(b) class exception).

However, §§ 5(a) and 7(a) are not the only provisions of the Code of Ethics implicated by this petitioner’s request.  Also relevant to the instant question is section 5(e) of the Code, which prohibits a public official from representing himself or any other person before any state or municipal agency of which he is a member or by which he is employed.  See R.I. Gen. Laws §§ 36-14-5(e)(1) and e(2).  Section 5(e)’s prohibitions are stricter than virtually any other provisions in the Code.  In this set of facts, however, the petitioner affirmatively represents that he does not ever speak for or represent the BSCA before the Town Council, but that rather, his role as liaison from the Town Council to the SCCFSC is simply to observe the goings on of the SCCFSC and report back to the Council.  As such, the petitioner’s general membership in the BSCA itself does not prohibit his participation in matters coming before the Town Council concerning the BSCA, nor does his position as “Town Council liaison” to the SCCFSC, as that appointment by the Town Council in no way changes the nature of his general membership, but rather, merely enlarges his Town Council duties to include observing and reporting back to the Council on the happenings of the SCCFSC.  Indeed, this petitioner’s circumstances are highly analogous to those found in prior advisory opinions in which public officials were not prohibited by general memberships in organizations from participating in actions involving those organizations.  See, e.g., A.O. 2002-06; A.O. 96-54; A.O. 95-59.  Thus, the petitioner need not recuse from participating in matters coming before the Town Council regarding the BSCA or the Senior Center.

Based on the petitioner's representations, pertinent provisions of the Code of Ethics, and prior advisory opinions, we conclude that the petitioner’s general membership in the Burrillville Senior Citizens’ Association does not require his recusal from participation in matters involving the BSCA coming before the Town Council. The petitioner is cautioned that he may not use 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, or business associate.  See R.I. Gen. Laws § 36-14-5(d).  Finally, if the petitioner’s role or status within the BSCA should change, the petitioner is encouraged to seek further guidance from the Commission as to how his duties on the Town Council may be impacted.

Code Citations:

36-14-5(a)

36-14-7(a)

Related Advisory Opinions:

A.O. 2007-45

A.O. 2002-06

A.O. 96-54

A.O. 95-59 

Keywords:

Business Associate