Advisory Opinion No. 2008-13

Rhode Island Ethics Commission

Advisory Opinion No. 2008-13

Re:  James D. Berson


The petitioner, a potential candidate for the North Kingstown Town Council (“town council”), a municipal elected position, requests an advisory opinion as to whether he is prohibited by the Code of Ethics from seeking election to the town council, and, if elected, what prohibitions the Code of Ethics may impose upon him, given that he is the Chief Operating Officer (“COO”) of Meeting Street, a non-profit organization that does business in the State of Rhode Island and with the North Kingstown School Department (“the school department”).


It is the opinion of the Rhode Island Ethics Commission that there is nothing in the Code of Ethics that inherently prohibits the petitioner from seeking election and serving on the North Kingstown Town Council (“town council”) while simultaneously employed as the Chief Operating Officer (“COO”) of Meeting Street.

The petitioner represents that he is the Chief Operating Officer (“COO”) of Meeting Street, a non-profit organization doing business in the State of Rhode Island and with the North Kingstown School Department.  The petitioner further represents that one of the programs provided by Meeting Street is a non-public school that accepts students with special needs (severe and profound disabilities) from local special education departments across the state.  He states that as the COO of Meeting Street, he is a salaried employee and that he has direct responsibility for the operation of the Meeting Street School.  He states that when a parent and a school district agree to place a student in a non-public school like Meeting Street in order to have the student’s Individual Education Plan goals met (if the district itself cannot meet those goals), the school district pays tuition to Meeting Street for that student. 

The petitioner states that he is considering running for a seat on the North Kingstown Town Council in the fall of 2008.  He further states that, at this time the North Kingstown School Department is paying for services for four students currently enrolled at Meeting Street.  He represents that tuition at Meeting Street for a 230 day school year is approximately $53,000 per pupil.  Finally, he states that to his knowledge, the specific or general placement of students in out of district schools, such as Meeting Street, is not under the purview of the town council.  In light of the aforementioned facts, the petitioner seeks an advisory opinion that offers guidance as to what matters he must recuse from, should he become a member of the North Kingstown Town Council.

Under the Code of Ethics, the petitioner 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 and employment in the public interest. See R.I. Gen. Laws § 36-14-5(a).  The petitioner will have an interest in substantial conflict with his official duties if he has reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents.  See R.I. Gen. Laws § 36-14-7(a).  Pursuant to R.I. Gen. Laws § 36-14-5(e)(1) and (2), the petitioner may not represent himself or any other “person” before any state or municipal agency of which he is a member or by which he is employed.  A “person” is defined as an individual or business entity.  R.I. Gen. Laws § 36-14-2(7).  R.I. Gen. Laws § 36-14-5(e)(3) further provides that the petitioner may not act as an expert witness before his agency with respect to any matter the agency’s disposition of which will or can reasonably be expected to directly result in an economic benefit or detriment to him, a family member, business associate or any business by which he is employed or represents.  Additionally, R.I. Gen. Laws §§ 36-14-5(c) and (d) prohibit the use and/or disclosure of confidential information acquired by an official or employee during the course of or by reason of his official employment, particularly for the purpose of obtaining financial gain.  Finally, section 5(f) of the Code further requires the petitioner to recuse from voting or participating in the consideration and disposition of a matter involving a business associate.  See R.I. Gen. Laws § 36-14-5(f).

It is the opinion of the Ethics Commission that there is nothing in the Code of Ethics that inherently prohibits the petitioner from seeking or accepting elective office, specifically as a member of the North Kingstown Town Council.  Rather, the above-cited conflict of interest provisions require a matter by matter analysis and determination as to whether substantial conflicts of interest exist with respect to carrying out an official's or employee's duty in the public interest.  The petitioner must determine, if elected to the Town Council, whether he is participating in a matter that may impact himself, a family member, an employer or a business associate.  If so, then the petitioner will be required to recuse from such matter pursuant to R.I. Gen. Laws § 36-14-6. 

As the Chief Operating Officer of Meeting Street, the petitioner is considered a business associate of that entity; as such, if elected, he will need to determine what matters coming before the Town Council, if any, will have a financial impact upon Meeting Street, and recuse from participation in those matters, and further, refrain from representing his business associate in matters coming before the Council or its subsidiary boards.  See R.I. Gen. Laws §§ 36-14-2(3), 36-14-5(a), 36-14-5(f), 36-14-7(a) and Regulation 36-14-5016.  Such conflicts may be present during the Town’s budget process, however the state of the facts at present are too hypothetical for the Commission to offer formal guidance as to the existence and avoidance of such conflicts.  See A.O. 2005-41 (opining that a prospective applicant for the position of Jamestown Town Administrator, whose husband was the Jamestown Fire Chief, may return for further guidance from the Commission if appointed, but the facts at the time of the request were too hypothetical for the Commission to offer formal guidance as to potential conflicts occurring during the Town’s budgetary process).  Thus, if elected, the Commission encourages the petitioner to seek further guidance as to whether any particular matter creates a conflict of interest that requires such recusal. 

Finally, the petitioner is advised that this opinion solely addresses the application of the Code of Ethics.  We note that this opinion does not address whether any municipal charter provision or ordinance prohibit such simultaneous service.  Such matters are outside the jurisdiction of the Ethics Commission and, as a result, cannot be addressed in this advisory opinion.

Code Citations:








Related Advisory Opinions:

A.O. 2005-41


Business Associate