Advisory Opinion No. 2009-1 Rhode Island Ethics Commission Advisory Opinion No. 2009-1 Re: Charles A. Collins, Jr. QUESTION PRESENTED The Petitioner, a member of the Scituate Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics places any limitations upon him in carrying out his duties as a Town Council member, given his association with S & C Collins Bus Company, Inc. RESPONSE It is the opinion of the Ethics Commission that the Code of Ethics requires that the Petitioner, a member of the Scituate Town Council, a municipal elected position, recuse from matters coming before the Town Council that concern S & C Collins Bus Company, Inc., or in which it is reasonably foreseeable that there will be a financial impact upon that entity. The Petitioner has been a member of the Scituate Town Council (“Town Council”) since January of 2007. He states that in his private capacity, he is employed as a part-time bus driver for S & C Collins Bus Company, Inc. (“Collins Bus, Inc.”), a company that was wholly owned by his father, who recently passed away. Currently, his father’s estate is going through the probate process, with the expectation that his mother will become the sole shareholder and owner, as well as President and Treasurer, of Collins Bus, Inc., with his sister serving as Secretary, and the Petitioner serving as Vice-President of the company. He states that Collins Bus, Inc. is one of three companies that currently supply contract busing services to the Scituate School Department (“School Department”). He further states that as Vice President of Collins Bus, Inc., he may be called upon to participate in contract negotiations between the School Department and Collins Bus, Inc. As such, the Petitioner requests an advisory opinion as to whether he can participate in matters coming before the Town Council regarding the school budget or other school related issues, given his employment and position as Vice President of Collins Bus, Inc. and his mother’s ownership of that entity. The Code of Ethics provides that when an official’s employer or the interests of the official’s employer appear before his agency, the official is required to recuse from participation in the matter. See Commission Regulation 36-14-5002(3). In addition, a public official shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction that is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if, among other reasons, the public official has reason to believe or expect that he or any business by which he is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a). Nor may a public official use his public office or confidential information received from his public office to obtain financial gain, other than that provided by law, for himself, a family member, business associate or private employer. See R.I. Gen. Laws § 36-14-5(d). Additionally, no business associate of any person subject to the Code shall represent himself 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). Furthermore, Commission Regulation 36-14-5004(b)(1), states in pertinent part that “[n]o person subject to the Code of Ethics shall participate in any matter as part of his or her public duties if he or she has reason to believe or expect that any person within his or her family * * * is a party to or a participant in such matter or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage, as the case may be.” Finally, the Code of Ethics also prohibits the Petitioner or any person within his family from entering into a contract with any state or municipal agency unless the contract is awarded through an open and public process. See R.I. Gen. Laws § 36-14-5(h). These provisions of the Code of Ethics prohibit the Petitioner from participating in any Town Council matter involving his employer, Collins Bus, Inc., or the interests of that entity or any matters regarding busing generally within the Chariho School district. See A.O. 2008-56 (opining that a member of the Foster School Committee, who in her private capacity was employed as a bus monitor with a private bus company that contracted with the Town, must recuse herself when the interests of her employer appear before the School Committee); A.O. 2006-23 (opining that a member of the Coventry Planning Commission is required to recuse from any matter involving his employer or the interests of his employer). In this instance, the Petitioner is also expecting to become the Vice President of Collins Bus, Inc., and thus will be a business associate of that entity, with his mother retaining 100% ownership of the company. For all of these reasons the Petitioner must remain vigilant in identifying any matters coming before the Town Council in which it is reasonably foreseeable that Collins Bus, Inc. may experience a resulting financial impact and must recuse from participation in such matters, in accordance with R.I. Gen. Laws § 36-14-6. However, it is the opinion of the Ethics Commission that it is not an inherent conflict of interest for the Petitioner to serve on the Town Council, notwithstanding the fact that he is an employee of, and will soon become an officer in, an entity of which a family member is the sole owner, that has a business association with the Town. Specifically, the Petitioner is not required to recuse on all matters coming before the Town Council regarding spending for schools or other school-related issues merely because his employer, business associate or family member does business with the school district; rather, the existence of a prohibited conflict of interest requires a matter by matter analysis. 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 policy or ordinance prohibits 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 : § 36-14-5(a) § 36-14-5(d) § 36-14-5(f) § 36-14-5(h) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5002(3) Commission Regulation 36-14-5004(b)(1) Related Advisory Opinions : A.O. 2008-56 A.O. 2006-23 Keywords : Business Associate Employer Family: Financial Benefit