Advisory Opinion No. 2009-27 Rhode Island Ethics Commission Advisory Opinion No. 2009-27 Re: Matthew W. Robinson QUESTION PRESENTED The Petitioner, a member of the East Providence Planning Board and a member of the East Providence Historic District Commission, municipal appointed positions, who is also an East Providence Police Officer, a municipal employee position, requests an advisory opinion as to whether the Code of Ethics prohibits such simultaneous public service. RESPONSE It is the opinion of the Ethics Commission that the Code of ethics does not inherently prohibit the Petitioner, a member of the East Providence Planning Board and a member of the East Providence Historic District Commission, municipal appointed positions, who is also an East Providence Police Officer, a municipal employee position, from serving in these three municipal capacities simultaneously, but that, rather, the existence of any potential conflict of interest implicating recusal in accordance with R.I. Gen. Laws § 36-14-6 requires a matter-by-matter analysis. The Petitioner has served as an East Providence Police Officer since June 1997. He was subsequently appointed by the East Providence City Council (“City Council”) to the East Providence Planning Board (“Planning Board”) in September 2006. Finally, in June 2009 he was appointed by the City Council to the newly created East Providence Historic District Commission (“HDC”). The Petitioner represents that in the past, when the Capital Budget has come before the Planning Board for its recommendation to the City Council, he has always recused from the proceedings, given that line items are included in that budget regarding the East Providence Police Department (“Police Department”). Additionally, he states that the HDC has only just been created and has yet to have its first meeting, so there has not as of yet been any interaction between that entity and the Planning Board, but the Petitioner nonetheless states that he understands that under some circumstances involving interaction between those two entities, he may be required to recuse. Under this set of circumstances the Petitioner asks whether it is an inherent conflict of interest for him to serve in these three separate public capacities simultaneously. Under the Code of Ethics, a public official or employee may not use his position, other than as provided by law, to benefit himself, and may not participate in any matter in which he has an interest in substantial conflict with his public duties. A substantial conflict of interest exists if, for example, an official has reason to believe or expect that he or an employer or business associate will derive a direct monetary gain or loss by reason of his official activity. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). Also, R.I. Gen. Laws § 36-14-5(b) prohibits a public official or employee from accepting other employment that will either impair his independence of judgment as to his official duties or employment or require him to disclose confidential information acquired by him in the course of his official duties. Finally, R.I. Gen. Laws § 36-14-5(d) provides that a public official may not use his office for pecuniary gain, other than provided by law, for himself, his family, employer, business associate, or a business that he represents. Sections 5(a), (b) and (d) of the Code of Ethics do not create an absolute bar to simultaneous service as a member of both the Planning Board and HDC, while also serving as a municipal police officer. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out an official’s duty in the public interest. Here, it seems possible that matters in which the HDC has an interest, or on which the HDC has taken a position, may appear, at least indirectly, before the Planning Board. However, although there may be some overlap in the Petitioner’s public roles, a substantial conflict of interest is not apparent by the Petitioner merely holding these positions which may involve the other public entities he is a member of or employed by. See A.O. 2008-51 (opining that a police officer in the Town of Burrillville was not prohibited from simultaneously serving as a member of the Pascoag Board of Fire Commissioners); A.O. 2006-14 (opining that an Assistant Harbormaster for the City of Newport was not inherently prohibited from simultaneously serving on the Newport Waterfront Commission, notwithstanding the fact that some similarities existed between the two roles, in that they both related to Newport Harbor); A.O. 2003-53 (opining that the Director for Attendance for the East Providence School Department was not prohibited from seeking election to the East Providence City Council, and if elected, from serving in both capacities simultaneously); A.O. (opining that an elected Cumberland Fire District Moderator was not prohibited from simultaneously working as a Cumberland District Firefighter); A.O. 99-100 (opining that that the Petitioner’s simultaneous service on the Tiverton Conservation Commission and the Tiverton Planning Board, municipal appointed positions, do not, in and of itself, present a conflict of interest under the Code of Ethics). Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not inherently barred by the Code of Ethics from simultaneously serving in these three capacities. Rather, sections 5(a), (b) and (d) require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out the Petitioner's official duties in the public interest. Specifically, what this Petitioner needs to be vigilant about is identifying any matters coming before the various municipal agencies he is associated with that have the potential to financially impact the Petitioner himself. Here, the Petitioner has already indicated that he will continue to recuse when matters involving his primary employment as a police officer arise before the Planning Board. The Petitioner must likewise recuse from participating in any other matters coming before him in his various roles that will directly financially impact himself, his family members, business associates and employers. 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 or any other provision of law prohibits 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 : § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-7(a) Related Advisory Opinions : A.O. 2008-51 A.O. 2006-14 A.O. 2003-53 A.O. 99-100 Keywords : Dual Public Roles