Advisory Opinion No. 2010-15 Rhode Island Ethics Commission Advisory Opinion No. 2010-15 Re: David S. Reis QUESTION PRESENTED The Petitioner, a Supervising Environmental Scientist with the Rhode Island Coastal Resources Management Council (“CRMC”), a state employee position, who is also a member of the Westerly Land Trust, a private non-profit entity, requests an advisory opinion regarding what prohibitions the Code places on him, if any, if he provides the Land Trust with professional and technical advice for permit applications which the Land Trust then submits to CRMC. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a Supervising Environmental Scientist with the Rhode Island Coastal Resources Management Council (“CRMC”), a state employee position, may not review permit applications submitted by the Westerly Land Trust to CRMC if he provides the Land Trust with professional and technical advice for permit applications. The Petitioner is a Supervising Environmental Scientist with the Rhode Island Coastal Resources Management Council (“CRMC”). He states that his responsibilities in this capacity include supervising staff in the environmental section, conducting environmental evaluations for permit applications, developing reports having professional recommendations and permit restrictions, providing expert testimony for public hearings and court proceedings, developing policies and regulations and coordinating the efforts of CRMC with federal, state and municipal authorities. Additionally, the Petitioner’s spouse is a Senior Environmental Scientist at the Rhode Island Department of Environmental Management (“DEM”). In his private capacity, the Petitioner and his spouse are dues-paying members of the Westerly Land Trust (“Land Trust”), a private non-profit entity. The Petitioner states that he has also accepted a position on the Land Trust Site Advisory Committee to assist the Land Trust regarding one specific parcel of land owned by the Land Trust referred to as the “Crandall Family Preserve” and that he will be providing advice with regard to environmental protection and public usage of that property. He states that on occasion, the Land Trust may submit applications to CRMC and DEM regarding preserving land for environmental protection, providing public access to preserved lands, and creating proposals for environmental restoration activities. He states that he may provide the Land Trust with professional or technical advice regarding how best to meet CRMC and DEM policies, rules and regulations. He represents that this advice may include the identification of wetlands and other natural resources which are subject to state regulation and advice as to the identification and application of pertinent rules and regulations and how to best address them. The Petitioner states that neither he nor his spouse will prepare any application on behalf of the Land Trust, nor will either of their signatures appear on any application or supporting documents. The Petitioner states that if he provides technical or professional advice on applications submitted to CRMC, he will notify his superior and request that the superior review and authorize such applications. The Petitioner further states that he may supervise a CRMC staff member conducting a review of a Land Trust application, but would not provide any approval under his signature. However, he does state that for the sake of expediency, in some cases involving such Land Trust applications for minor activities which are deemed to be entirely consistent with the Coastal Resources Management Program, he may elect to review an application himself, but that any such application would be authorized by a superior, who would have knowledge of the Petitioner’s involvement in advising the Land Trust regarding the application prior to authorization. In the alternative, if needed, the Petitioner states that he can entirely remove himself from the application review process for any application in which he has provided assistance to the Land Trust, and notify a superior. Additionally, the Petitioner states that he may assist the Land Trust with applications to CRMC for open space grants, habitat restoration funding and similar endeavors. The Petitioner states that he does not have any involvement in his public capacity with any type of grants or funding administration, and that such requests are reviewed by CRMC agency personnel that are not subject to his review or control. Finally, the Petitioner states that neither he nor his spouse will receive compensation or stand to make any financial gain or benefit from assisting the Land Trust in the various applications. Given this set of facts, the Petitioner requests an advisory opinion as to what prohibitions, if any, the Code of Ethics places on him in carrying out his public duties. The Code of Ethics provides that the Petitioner 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 the Petitioner 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). Section 5(b) of the Code of Ethics prohibits a person subject to the Code from accepting other employment that will 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. See R.I. Gen. Laws § 36-14-5(b). Additionally, the Code provides that the Petitioner shall not in any way use his public office or confidential information received through his holding any public office to obtain financial gain, other than that provided by law, for himself, a business associate or any business by which the Petitioner is employed. See R.I. Gen. Laws § 36-14-5(d). A "business associate" is an individual or business entity joined together with another individual or business entity to achieve a common financial objective. See R.I. Gen. Laws § 36-14-2(3); 36-14-2(7). Here, the Petitioner is both a general member of the Land Trust and additionally, serves on its Site Advisory Committee. Furthermore, he will be providing the Land Trust with professional services, albeit unpaid, in the form of professional and technical advice regarding compliance with regulatory requirements, wetlands identification, and other matters. It is the opinion of the Ethics Commission that such a relationship constitutes a business association, as that term is defined in R.I. Gen. Laws § 36-14-2(3). Accordingly, the Petitioner is prohibited from participation in CRMC’s review or decision-making regarding matters involving the Land Trust, pursuant to R.I. Gen. Laws § 36-14-5(a), (d) and (f); this prohibition includes the review of, or supervision over, a subordinate’s work regarding Land Trust matters. The Petitioner’s independence of judgment will be impaired if called upon to review an application in which he himself has advised the Land Trust. See R.I. Gen. Laws § 36-14-5(b). Code Citations: § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) Â 36-14-5(b) § 36-14-5(d) § 36-14-7(a) Keywords: Business Associate Private Employment