Advisory Opinion No. 2008-49 Rhode Island Ethics Commission Advisory Opinion No. 2008-49 Re: Paul D. Ragosta, Esq. QUESTION PRESENTED The petitioner, legal counsel to the Rhode Island Office of the Auditor General, a state employee position, requests an advisory opinion concerning whether the Code of Ethics prohibits him from accepting an appointment to the City of Providence Bureau of Licenses, a municipal appointed position. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, legal counsel to the Rhode Island Office of the Auditor General, a state employee position, is not prohibited by the Code of Ethics from accepting an appointment to serve on the City of Providence Bureau of Licenses, a municipal appointed position. The petitioner is employed, part-time, as legal counsel to the Rhode Island Office of the Auditor General ("Auditor General"). The Auditor General performs a variety of auditing functions for the State of Rhode Island's departments and agencies in order to provide information to General Assembly members on the operations of state government. Relative to the instant matter, the petitioner states that the Auditor General also has certain oversight functions with respect to municipalities. In particular, the Auditor General reviews any municipality's request to exceed the statutory cap on the local property tax levy, evaluates and approves municipal deficit reduction plans and financial corrective action plans, approves the selection of outside auditors to conduct municipal audits, and may conduct special studies or analyses of municipal finances. The petitioner states that the Auditor General does not audit the City of Providence. The petitioner states that the Mayor of Providence has appointed him to the Providence Bureau of Licenses ("Bureau of Licenses"), subject to approval by the Providence City Council. The five-member Bureau of Licenses is responsible for approving, denying and regulating certain licenses for things such as liquor, food, Sunday sales, peddlers, bingo, entertainment and second-hand stores. Members are appointed for terms of three years and receive a stipend from the City. The petitioner asks whether he may accept this appointment, given his part-time employment with the Auditor General, as described above. 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. R.I. Gen. Laws § 36-14-5(a). A public official will have an interest in substantial conflict with his official duties if it is reasonably foreseeable 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, a business associate or a business by which he is employed. R.I. Gen. Laws § 36-14-7(a); Regulation 7001. Pursuant to R.I. Gen. Laws § 36-14-5(b), the petitioner may not accept other employment which would impair his independence of judgment as to his official duties, or require or induce him to disclose confidential information acquired in the course of his official duties. Additionally, the Code of Ethics prohibits the petitioner from using 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, a business associate or business by which he is employed. R.I. Gen. Laws § 36-14-5(d). The Commission has considered these Code provisions in similar situations involving dual public roles, and has found that the Code does not generally bar a public official from simultaneous service with, or employment at, multiple public entities. See, e.g., A.O. 2007-13 (member of Quonset Development Board who is also a member of the North Kingstown Town Council may participate in Quonset's decisions regarding development proposal within North Kingstown); 2005-38 (opining that the petitioner may simultaneously serve as a member of the Pawtucket City Council, a municipal elected position, and as a member of the Rhode Island Public Utilities Commission, a state appointed position); A.O. 2005-3 (opining that the petitioner may simultaneously serve as a Commissioner of the Rhode Island Public Utilities Commission, a state appointed position, and as a member of the Town of East Greenwich Planning Board, a municipal appointed position). Although the above opinions generally find that the Code of Ethics does not create an absolute bar to simultaneous service on two public entities, a person serving in such dual roles may nevertheless be presented with particular matters while serving in either role that will require his recusal. This may occur when a public official's actions at one entity directly impact his employment or duties at the other, or where his association with one entity impairs his independence of judgment as to his duties with the other. See R.I. Gen. Laws §§ 36-14-5(a); 36-14-5(b). Based on the above, it is the opinion of the Rhode Island Ethics Commission that the petitioner will not violate the Code of Ethics by accepting an appointment to the Providence Bureau of Licenses, notwithstanding his current employment with the Office of Auditor General. In carrying out his duties with the Auditor General, the petitioner is not required to recuse from each and every matter that concerns the City of Providence. Nonetheless, when particular matters concerning the City of Providence arise, the petitioner must be vigilant in identifying those that may financially impact him by reason of his position with the Bureau of Licenses. If such a conflict seems likely, or if the petitioner finds that his independence of judgment as to his official duties may become impaired, he must recuse from participation pursuant to R.I. Gen. Laws § 36-14-6, or seek additional guidance from the Ethics Commission prior to acting. The petitioner is further advised that this opinion solely addresses the application of the Code of Ethics to the facts presented. This opinion does not, and cannot, address whether any other statute, charter provision, ordinance, regulation, rule, or policy prohibits such simultaneous service or adds additional restrictions. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-6 36-14-7(a) Regulation 7001 Related Advisory Opinions: 2007-13 2005-38 2005-33 2005-3 2001-66 2000-82 2000-56 2000-22 99-149 99-62 98-104 98-99 98-59 95-62 95-38 Keywords: Dual public roles