Advisory Opinion No. 2008-22

Rhode Island Ethics Commission

Advisory Opinion No. 2008-22

Re: Mark E. Liberati, Esq.

QUESTION PRESENTED

The petitioner, Harbormaster of the Town of Jamestown (“Harbormaster”), a municipal appointed position, requests an advisory opinion as to whether he may continue to provide mooring maintenance services for individuals who own moorings under the jurisdiction of the Jamestown Harbor Management Commission, notwithstanding the fact that his duties as Harbormaster include enforcing mooring regulations and monitoring moorings in accordance with the Town of Jamestown Harbor Management Ordinance (“the Harbor Ordinance”).

RESPONSE

The petitioner has been the Harbormaster for the Town of Jamestown for sixteen years. He represents that there is a second Harbormaster and that both Harbormasters work on an alternating schedule, with the petitioner being on duty four days a week and the second Harbormaster being on duty the other three days a week. The petitioner explicitly represents that both Harbormasters share equal stature and neither is subordinate to, or supervisory of, the other.

The duties of the “Harbor Administrative Staff,” which consists of the Harbormaster, a Harbor Clerk, and additional personnel as required, are outlined in the Town of Jamestown Harbor Management Ordinance (“the Harbor Ordinance”), and include the following responsibilities:

1) Administering and enforcing the provisions of the harbor management plan and its ordinances;

2) Processing applications for the issuance of mooring permits and assigning placements of moorings in accordance with this ordinance;

3) Keeping proper records of all mooring application information, including the locations of moorings, mooring owners and vessel usage of moorings, types of vessels using moorings, etc;

4) Preparing, keeping current, and making available a waiting list for mooring permits in accordance with the provisions of this ordinance when the demand for available mooring permits is greater than the number of available mooring locations in any given year.

5) Inspecting moorings in accordance with the provisions of Section 6(k) of this ordinance;

6) Monitoring moorings in accordance with the provisions of Section 6(g) and 6(l) of this ordinance.

7) Carrying out all other powers and duties authorized to the harbormaster under various state and federal marine laws, including but not limited to marine sanitation device (MSD) inspection and discharge responsibilities afforded through the U.S. Coast Guard, MARPOL ANNEX V, Section 312 of the Clean Water Act, Title 46-22 of the General Laws of Rhode Island, and future laws yet to be enacted.

Town of Jamestown, Harbor Management Ordinance § 9(b).

The petitioner states that in his private employment, he services moorings for individuals who own moorings under the jurisdiction of the Jamestown Harbor Management Commission; he states that currently, he commissions less than ten of the approximately 1,400 permitted moorings located in the Jamestown Harbors. He further states that his services do not include the installation, movement, or servicing of mooring blocks or anchors, but rather, only include the inspection, maintenance, and replacement of mooring chains, shackles, and floats. He states that this work is done for a fixed rate of $120.00 per season, plus the cost of the hardware.

Pertinent to this petitioner’s request is section 6(k) of the Harbor Ordinance entitled “Mooring inspections.” This provision mandates, inter alia, that: all new moorings in the town waters shall be inspected and approved by the Harbormaster or his designee; the Harbormaster or his designee may inspect any mooring at any time to determine compliance; all moorings shall be inspected at least once every three years and the results certified by the inspector and reported to the harbor office and this inspection shall determine compliance with the minimum mooring and tackle standards of the ordinance; that any mooring or mooring component reported as non-compliant requires a second inspection within 45 days, with the results being reported to the Harbormaster, who may deem, if necessary for safety, to remove a vessel immediately from a non-complying mooring; and finally, that while use of qualified mooring inspectors is strongly recommended, owners may inspect their own moorings upon written approval of the Harbormaster. See id. The petitioner himself provides that it is common practice for mooring owners to inspect their own moorings for the purposes of permit renewal, and that in fact, this procedure does not require the prior written approval of the Harbormaster, notwithstanding the above cited language in Section 6(k) of the Harbor Ordinance.

In his written request, the petitioner emphasizes that while the Harbor Ordinance requires mooring inspection once every three years, the Harbor Commission allows individual mooring owners to act as “inspectors” of their own moorings, and that further, while the Harbormaster has responsibility for the safety of mooring hardware, he does not routinely inspect mooring hardware, nor does the ordinance mandate that he do so. The petitioner orally represented and clarified that the mooring maintenance services that he provides to his clients would not constitute inspection services for the purposes of renewing a mooring permit. The petitioner also states that while a significant responsibility of the Harbormaster concerns supervisory authority over the placement of moorings and the resolution of conflicts between mooring owners over such placement, in his private employment he has not, and will not, engage in the business of setting mooring blocks or anchors. Additionally, he states that if circumstances dictate that the mooring hardware of one of his clients be inspected, that the other Harbormaster could do the inspection and could also resolve disputes, if any, arising between mooring owners when one of the owners is the petitioner’s client. Finally, the petitioner represents that both Harbormasters are supervised by the Executive Director of the Jamestown Harbor Management Commission, who is also the Chief of Police for the Town of Jamestown, Thomas Tighe, who was appointed by the Jamestown Town Council to supervise staff and administer provisions of the Harbor Ordinance. The petitioner further provides that this Executive Director, who has supervisory authority over the Harbormaster, could handle matters in which either, or both, of the Harbormasters were prohibited from participating in.

Beyond the duties delegated to the Harbormaster and other administrative staff that relate to the placement of moorings, their inspection, and the mooring permitting process as delineated in the Harbor Ordinance, the Harbormaster and his staff are also charged with “[a]dministering and enforcing the provisions of the harbor management plan and its ordinances” in general. See Town of Jamestown, Harbor Management Ordinance § 9(b)(1). These provisions include insuring that the public rights of way are not impeded, determining the forfeiture of a permit holder’s mooring space for failure to comply with the requirements of the Harbor Ordinance, regulating harbor activities including the management, control, operation and speed of vehicles and the discharge of refuse and sewage in the harbor waters, taking custody and control of abandoned vessels, and the processing and payment of boating fines. In regard to the oversight of these harbor activities, the Harbor Ordinance states that “[t]he primary responsibility for enforcement of regulated activities, including detention, arrest, and issuance of summonses for violations is delegated to the harbormaster and the Jamestown Police Department. Police officers and the harbormaster of the Town of Jamestown shall have the power and authority to enforce the rules and regulations of this ordinance and of the General Laws of the State of Rhode Island.” Town of Jamestown, Harbor Management Ordinance § 7(k).

Thus, in light of all of the above representations, the petitioner requests an advisory opinion as to whether, given the aforementioned duties and responsibilities of the Harbormaster, he is prohibited by the Code of Ethics from continuing to service moorings within the Jamestown harbor waters, over which he has jurisdiction as Harbormaster.

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 a 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). The Code further provides that the petitioner shall not engage in any employment that would impair his independence of judgment as to his public duties. See R.I. Gen. Laws § 36-14-5(b). He also is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d).

Additionally, no business associate of any person subject to this Code of Ethics shall represent him or herself before the municipal agency of which the person is a member unless the agency is advised of the nature of the relationship and the official recuses himself from voting or otherwise participating in his agency's consideration of the matter at issue. See R.I. Gen. Laws § 36-14-5(f). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3).

In past advisory opinions, the Commission has opined that a public official was not prohibited from performing services in his own town provided that the public official does not inspect his own work. See A.O. 2003-55 (opining that the Alternate Building Official for the Town of Coventry may do work in Coventry that doesn’t require a permit or inspection, such as cabinetry work, painting, and tile work, provided that he would not be inspecting projects for which he provided services); A.O. 99-39 (opining that the Alternate Building Official for the Town of East Greenwich may provide architectural design services for private clients within East Greenwich, provided that he recuse from participation in any review or inspection of projects in which he is involved and that his private employment does not require him to appear before the Building Official); A.O. 98-49 (opining that an Engineer hired by the Town of Johnston may appear before the Town of Johnston Planning Board as the engineer of record on a project to be reviewed by the Board, provided that another engineer retained by the Town reviews and completes all necessary inspections for the project).

While in the past the Commission has opined that some public officials and employees may perform privately contracted for services within the same town in which they publicly serve, the Commission has also opined that other public officials and employees, while not prohibited entirely from private employment in some way related to their public employment, may only engage in such employment outside of their official public jurisdiction. See A.O. 2006-17 (opining that a Lieutenant in the East Providence Police Department may apply for a private investigator’s license from the City of East Providence and operate said business from his residence in East Providence provided that, among other things, he not accept any cases or perform any work within the City of East Providence so long as he is employed by the East Providence Police Department); A.O. 2003-71 (opining that the Tiverton Municipal Court Judge, and members of the law firm by which he is employed may represent private clients before the Tiverton Town Council, Zoning Board of Review and other municipal bodies, including individuals charged with criminal offenses by the Tiverton Police Department, provided that the representation is not related to a matter in which he is involved as Municipal Court Judge or over which the Municipal Court has jurisdiction); A.O. 2001-46 (opining that an active member of the Bristol Police Department could assist a private investigator in reviewing a criminal case under the jurisdiction of the Massachusetts’s District Attorneys Office provided that, among other things, he had no involvement with matters subject to the Bristol Police Department’s official jurisdiction); A.O. 2000-93 (opining that investigative employees of the Department of Labor and Training could accept and maintain private employment in the professional fields for which they had investigative, licensing and enforcement responsibilities provided that (1) they did not perform such work within the State of Rhode Island; (2) they performed such work on their own time and without the use of public resources, and (3) they did not use their State positions to recruit potential clients)

Based on the representations of the petitioner, prior advisory opinions, and pertinent provisions of the Code of Ethics, and provided that the petitioner, the Harbormaster of the Town of Jamestown, a municipal appointed position, would not be inspecting moorings for which he provided maintenance services, it is the opinion of the Ethics Commission that the petitioner may work doing mooring maintenance services in the Town of Jamestown while simultaneously employed as the Harbormaster. The prohibitions contained in subsections 5(a), 5(b), and 5(d) of the Code do not inherently prohibit the petitioner from performing these services, but rather, the existence of a prohibited conflict of interest requires a matter by matter analysis. Accordingly, the petitioner is cautioned that transactions with potential or actual clients may not be done during his regular working hours as Harbormaster, and he may not use public resources, nor use his position with the Town, to solicit customers. In this instance, the petitioner is also cautioned that he may not participate in official actions that involve a mooring owner or any individual with whom he has an ongoing business association, but that the town may utilize, if it so chooses, the services of the other Harbormaster or the Executive Director to do so, as described herein. See R.I. Gen. Laws § 36-14-5(f). 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 state statute or regulation or municipal charter provisions, ordinances, policies, or regulations prohibit such activity. Such matters are outside the jurisdiction of the Ethics Commission and, as a result, cannot be addressed in this advisory opinion.

Code Citations :

36-14-2(3)

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(f)

36-14-7(a)

Municipal Provisions Referenced :

Town of Jamestown Harbor Management Ordinance

Related Advisory Opinions :

A.O. 2006-17

A.O. 2003-71

A.O. 2003-55

A.O. 2001-46

A.O. 2000-93

A.O. 99-39

A.O. 98-49

Keywords :

Business Associate

Private Employment