Advisory Opinion No. 2009-5 Rhode Island Ethics Commission Advisory Opinion No. 2009-5 Re: Lawrence G. Anderson QUESTION PRESENTED The Petitioner, the Town Moderator for the Town of Little Compton, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from appearing on behalf of the Sakonnet Preservation Association and the Tiverton Land Trust before various municipal entities and persons in the Towns of Tiverton, Newport, and Little Compton. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, the Town Moderator for the Town of Little Compton, a municipal elected position, is not prohibited by the Code of Ethics from appearing on behalf of the Sakonnet Preservation Association and the Tiverton Land Trust before various municipal entities and persons in the Towns of Tiverton, Newport, and Little Compton, provided that he recuses from performing his duties as Moderator, in accordance with R.I. Gen. Laws § 36-14-6, if it is reasonably foreseeable that either of those entities will be financially impacted as a result of his official actions. The Petitioner is the Town Moderator for the Town of Little Compton (“Town Moderator”). He represents that the duties of the Town Moderator are set forth in § 303 of the Home Rule Charter of the Town of Little Compton and consist of moderating financial town meetings and special town meetings convened by the town, and that for such services, he receives a stipend of $50 per meeting, paid from the account of the Board of Canvassers. The Petitioner has also been compensated to serve as a moderator at general and primary elections in the amount of $160 for such services, pursuant to appointment by the Board of Canvassers. He further states that in practice, the specific duties of the Town Moderator involve presiding over a meeting of town electors at which separate warrant articles for the expenditure of town funds for various town departments and services are debated and voted upon. Section 301 of the Little Compton Charter, entitled “Date and Purpose of Financial Town Meeting,” further states that the purpose of the Financial Town Meeting is “for the imposing of a tax, for providing for the expenditure of such sums of money as may be necessary to pay the Town’s debts and interest thereon, for the support of Town services for the ensuing fiscal year, for the expenditure of funds from any source for all other lawful purposes, and for transacting such other business as may lawfully come before such meeting.” In addition, the Petitioner affirmatively represents that the duties of the Town Moderator do not extend outside or beyond the financial town meeting, nor does the Town Moderator have any fiscal or jurisdictional control over the individual departments, boards, or offices whose budgets appear on the warrant, nor does he customarily propose or develop the separate articles that appear on the warrant for the meeting. In his private capacity, the Petitioner states that he has been retained as a paid consultant by the Sakonnet Preservation Association (“SPA”) and the Tiverton Land Trust (“TLT”) to seek the acquisition of conservation easements on real estate in Little Compton and Tiverton owned by the City of Newport and managed by the Newport Water Authority. The Petitioner represents that in the course of his work as a consultant to the two land trusts, it is expected that he will appear on their behalf before various municipal boards and officials, including, inter alia, assessors, town and city councils, town managers, and planning boards in the municipalities of Tiverton, Newport and Little Compton. He further specifies that appearances before those agencies and officials on behalf of SPA and TLT may involve real estate conveyances, property tax assessments, transaction expenses and other legal, financial, and regulatory matters. Finally, the Petitioner represents that if any matter should come before the financial town meeting or other special town meeting over which he is presiding as Town Moderator which involves the project for which SPA and TLT have hired him as consultant, he would recuse from his duties as Moderator. Additionally, he states that the Town Council appoints an Assistant Moderator, pursuant to the Town Charter, who could assume the duties of the Moderator if he was unable to perform them. With this set of facts, the Petitioner requests an advisory opinion as to whether he is prohibited by the Code of Ethics from representing SPA and TLT before the aforementioned municipal agencies and officials, given his position as Town Moderator for the Town of Little Compton. The Code of Ethics provides that 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 in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if he has reason to believe or expect that he or any family member or business associate, 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). The Code further provides that a public official shall not engage in any employment that will impair his independence of judgment as to his public duties, or require or induce him to disclose confidential information acquired in the course of his official duties. See R.I. Gen. Laws § 36-14-5(b). Furthermore, pursuant to R.I. Gen. Laws § 36-14-5(d), the Petitioner is prohibited 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, business associate or employer. 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). Additionally, 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. Finally, Commission Regulation 5008, subsection (b), states in pertinent part that “[n]o municipal appointed or elected official or employee, who exercises fiscal or jurisdictional control over any municipal agency, board, Commission or governmental entity, shall act, for compensation, as an agent or attorney before such agency, board, Commission or governmental entity for any person or organization in any particular matter in which the municipality has an interest or is a party.” Previously, the Commission has issued two prior advisory opinions highly analogous to this Petitioner’s set of facts. In Advisory Opinion 2002-36, the Petitioner was a candidate for the position of East Greenwich Town Moderator, as well as an attorney in private practice, who asked whether, if elected, he would be prohibited by the Code of Ethics from representing private clients before the East Greenwich Planning Board, Zoning Board and Town Council. In that Opinion, this Commission opined that the Petitioner was not prohibited from representing private clients before the enumerated municipal entities if elected as Town Moderator, given that his responsibilities as Moderator were solely to preside over and maintain decorum at the annual Town Financial Meeting, and that as Moderator, he would not exercise fiscal or jurisdictional control over any agency, board or other entity of municipal government. See Commission Regulation 36-14-5008. See also A.O. 95-19 (concluding that the Code of Ethics did not prohibit the Richmond Town Moderator from representing private clients before the Richmond Zoning Board, Town Council, Planning Board, and all other municipal departments given that the moderator had no authority over the preparation of the town’s budget or in the operation of any town department, board, commission or council). However, the relationships between the Petitioner and his clients, SPA and TLT, are business associations pursuant to the Code of Ethics. See R.I. Gen. Laws § 36-14-2(3). As such, the Petitioner is bound, when carrying out his duties as Town Moderator, by all of those prohibitions in the Code pertinent to business associations. See R.I. Gen. Laws § 36-14-5(a),(d),(f), and 7(a). Accordingly, in consideration of the relevant provisions of the Code of Ethics and the aforementioned past advisory opinions, it is the opinion of the Ethics Commission that the Petitioner is not prohibited from representing the interests of SPA or TLT before municipal entities and officials in the municipalities of Tiverton, Newport, and Little Compton, notwithstanding his position as Little Compton Town Moderator, provided that he recuses from his duties as Moderator in any matters in which SPA or TLT appears before him or in which it is reasonably foreseeable that SPA or TLT will be financially impacted. 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, 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 : § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-5(e) § 36-14-7(a) Commission Regulation 5008 Related Advisory Opinions : A.O. 2002-36 A.O. 95-19 Keywords : Business Associate Private Employment