Advisory Opinion No. 2010-12 Rhode Island Ethics Commission Advisory Opinion No. 2010-12 Re: Richard G. Aubin, Jr. QUESTION PRESENTED The Petitioner, a member of the Central Falls City Council, a municipal elected position, requests an advisory opinion regarding whether he is prohibited by the Code of Ethics from performing repair services on municipal vehicles as an employee of Quality Auto Repair. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a member of the Central Falls City Council, a municipal elected position, may perform repair services on municipal vehicles as an employee of Quality Auto Repair, provided that he recuse on any matters coming before the City Council regarding municipal vehicle repairs or items that might otherwise financially impact his employer, Quality Auto Repair. The Petitioner has been a member of the Central Falls City Council for three years. In his private capacity, the Petitioner represents that he has been an employee of Quality Auto Repair (“Quality Auto”), a business owned by his father, for over twenty years. The Petitioner further represents that, as part of his employment at Quality Auto, he, along with other employees of Quality Auto, performs repairs on Central Falls Police Department and other municipal vehicles. The Petitioner states that he has no ownership or other financial interest in Quality Auto, other than being an employee, and that Quality Auto has been repairing police department and other municipal vehicles for the City of Central Falls for over twenty years. He further states that he receives no financial benefit by way of his work on municipal vehicles other than as an employee of Quality Auto. The Petitioner estimates that there are at least three other auto repair businesses in Central Falls that perform repairs on municipal vehicles. He states that the city has no formal bid process in place, or rotating list, regarding which businesses will perform the repairs, but rather, that the Police Department will call Quality Auto when a vehicle is in need of repair and that the decision as to where to bring a vehicle for repairs is left up to the Police Department. Finally, the Petitioner states that while serving as a council member, he has regularly recused on those portions of the Police Department budget regarding vehicles. Under this set of facts, the Petitioner requests an advisory opinion as to whether the Code of Ethics prohibits him from repairing municipal vehicles as an employee of Quality Auto, given that he is a member of the Central Falls City Council. Under the Code of Ethics, a public official or employee 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). An official will have an interest in substantial conflict with his official duties if it is likely 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, employer, business associate, or a business that he represents. See R.I. Gen. Laws § 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. Additionally, 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, a family member, employer, business associate, or a business that he represents. Finally, the prohibition outlined in Commission Regulation 36-14-5014 states in pertinent part: No municipal elected official or municipal school committee member, whether elected or appointed, while holding office and for a period of one (1) year after leaving municipal office, shall seek or accept employment with any municipal agency in the municipality in which the official serves, other than employment which was held at the time of the official’s election or appointment to office or at the time of enactment of this regulation, except as provided herein. Id. For purposes of Regulation 5014, “employment” includes “service as an independent contractor.” Central to the analysis in this Petitioner’s set of circumstances is the fact that in his private capacity as an employee of Quality Auto, he is not a municipal employee, nor an independent contractor as that term is used in Regulation 5014, but rather, is solely an employee of Quality Auto, an entity in which he has no ownership interest, which itself provides vehicle repair services to the city. Furthermore, even assuming, arguendo, that the Petitioner were to be considered an “independent contractor” of the municipality pursuant to Regulation 5014, a position that this Commission rejects for purposes of this advisory opinion, the Petitioner’s employment at Quality Auto Repair long preceded his election to the Council, and thus is “employment which was held at the time of [his] election to office . . . .” Commission Regulation 36-14-5014. See A.O. 2008-72 (opining that an East Providence City Council member’s company, A Towing Inc., may continue to serve on the City of East Providence Tow list, notwithstanding that he is a member of the East Providence City Council, given that this employment was held at the time of his election to office, pursuant to Commission Regulation 36-14-5014); A.O. 2007-3 (opining that a Charlestown Town Council member may retain his part-time employment as a custodian at the Charlestown Senior Center, a municipal employee position, which he held prior to his election to the Town Council). Accordingly, it is the opinion of this Commission that the Petitioner is not prohibited from performing repairs on municipal vehicles as an employee of Quality Auto, given that, in performing such work, he is neither serving as a municipal employee nor as an independent contractor with the City of Central Falls. However, the Petitioner must recuse, in accordance with R.I. Gen. Laws § 36-14-6, when any matter comes before the City Council which may have a financial impact on Quality Auto, including any budgetary items regarding municipal auto repair, given that his father is the business owner and he is an employee. Notice of recusal should be filed with the City Council and the Commission in accordance with R.I. Gen. Laws § 36-14-6. Finally, the Petitioner is advised that this opinion solely addresses the application of the Code of Ethics. It does not, and cannot, address whether any other statute, charter, ordinance, ruling or policy prohibits such conduct. The Ethics Commission does not exercise jurisdiction over those other provisions of law and, therefore, is not empowered to issue advisory opinions addressing or interpreting their effect. Code Citations: § 36-14-5(a) § 36-14-7(a) § 36-14-5(b) § 36-14-5(d) Commission Regulation 36-14-5014 Related Advisory Opinions: A.O. 2008-72 A.O. 2007-3 Keywords: Family: Business Interest Private Employment