Advisory Opinion No. 2010-26 Rhode Island Ethics Commission Advisory Opinion No. 2010-26 Re: Thomas C. Riley QUESTION PRESENTED The Petitioner, Thomas C. Riley, a member of the City of East Providence Canvassing Authority, a municipal appointed position, requests an advisory opinion regarding whether he may accept employment as the Canvassing Authority Office Administrator. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the City of East Providence Canvassing Authority, may not accept employment as the Canvassing Authority Office Administrator. Since his original appointment in 1991, the Petitioner has been a member of the three-person East Providence Canvassing Authority ("Canvassing Authority"). The Petitioner represents that the Canvassing Authority has the statutory authority and responsibility to hire a full-time Office Administrator to manage the Canvassing Office. The Petitioner states that the Canvassing Authority recently updated the Office Administrator's job description, decided upon notice and application procedures, and advertised for the position. According to the Petitioner, to date the Canvassing Authority has received twenty-six (26) resumes, including the Petitioner's. He notes that he intends to recuse himself from voting to select any particular applicant, including himself, and that if he is selected, it is his intent to resign his position as a member of the Canvassing Authority to avoid any risk of Open Meetings Act violations.[1] Given all of the above representations, the Petitioner asks whether he is permitted to review the applications for the position of Office Administrator as a member of the Canvassing Authority, and whether, if offered the position, the Code of Ethics would permit him to accept employment from the Canvassing Authority as its Office Administrator. Under the Code of Ethics, a public official may not have an interest, or engage in any business, employment, transaction or professional activity, which is in substantial conflict with the proper discharge of his duties in the public interest. 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 his official activity, to the official, a family member, or a business associate. R.I. Gen. Laws § 36-14-7(a). Section 5(b) of the Code prohibits a public official 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. A public official may not use his public position to obtain financial gain, other than that provided by law, for himself, his family or business associates. R.I. Gen. Laws § 36-14-5(d). These Code provisions act to prohibit the Petitioner from taking official action to promote his own selection for the position of Office Administrator. This includes not only participating in the review of his own application, but also applies to the Canvassing Authority's review and decision-making as to all other candidates who are competing against the Petitioner since a decision to reject another candidate would serve to winnow the potential field, making the Petitioner's selection more likely. However, even if the Petitioner were to recuse from the Canvassing Authority's consideration of all candidates, he would still be prohibited from accepting the position. Commission Regulation 5006 prohibits a municipal appointed official such as the Petitioner from accepting a paid position that requires approval by the body of which he is a member, until the expiration of one (1) year after termination of his membership on such body, unless the denial of such employment would create a substantial hardship for the body or municipality. See Commission Regulation 36-14-5006. We have previously stated that one of the primary purposes of Regulation 5006 and the Code's other revolving door provisions is to prevent government employees and officials from unfairly profiting from or trading upon the contacts, associations and special knowledge that they acquired while performing their public duties as members of state and municipal boards. The Commission has had frequent opportunity to apply Regulation 5006 in advisory opinions, and has already addressed the precise question presented here. In Advisory Opinion 96-79, a member of the Warwick Board of Canvassers asked whether he could be appointed by the Board to serve as its Clerk. We wrote: In this matter, the Warwick Board of Canvassers compensates its Clerk. Therefore, a sitting member of the Board or former member who has not yet met the one year limitation, may not be appointed to serve as Clerk for the Board of Canvassers unless and until this Commission finds that the Board has provided a showing of substantial hardship. Id. See also A.O. 2004-36 (state employee sitting on Rhode Island Water Resources Board as designee of Director of Administration may not accept employment as General Manager of the Water Resources Board); A.O. 2001-53 (former Tiverton Town Councilor may not accept appointment as Tiverton Fire Chief prior to expiration of one year from date of leaving position on Council, given that appointment requires Council's advice and consent); A.O. 2000-32 (absent a finding of hardship, a member of the East Providence Carousel Commission would be prohibited from accepting employment from the Carousel Commission as Manager of the City's Carousel); A.O. 2000-4 (member of Board of Rhode Island State Council on the Arts may not accept Governor's appointment as State Poet, since State Poet must be nominated and recommended by Board, and honorarium is paid through budget administered by Board); A.O. 99-104 (East Greenwich Town Councilor prohibited from accepting appointment by Council to Kent County Water Authority); A.O. 99-94 (Town of Coventry School Committee member may not accept appointment by School Committee to paid position of Head Wrestling Coach at Middle School); A.O. 99-76 (absent finding of hardship, Westerly Recreation Board member prohibited from accepting position as clerk of works advertised by Recreation Board); A.O. 99-60 (member of Rhode Island Bridge and Turnpike Authority’s Board of Directors may not accept employment with Turnpike Authority as its Executive Director until expiration of period of one year following his termination of membership on Board); A.O. 98-104; A.O. 97-138; A.O. 97-117; A.O. 97-41; A.O. 97-26; A.O. 97-17; A.O. 96-85. As in our previous opinions, the instant Petitioner is prohibited by Regulation 5006 from accepting employment as the Canvassing Authority's Office Administrator, until a year has passed from his termination of membership on the body, unless the Ethics Commission gives its approval based upon a finding of substantial hardship. Here, the Petitioner states that his inability to be hired as the Office Administrator would constitute an extreme hardship to the City of East Providence because no other applicant possesses his level of education, extensive experience, or willingness to defer a portion of the position's salary over four years. Even assuming these representations are true, the issue in considering a hardship to the municipality is not whether the Petitioner is the most qualified candidate, but whether he is the only qualified candidate. See A.O. 2006-1 ("The Ethics Commission could assume arguendo that the petitioner is the most qualified candidate for the job, but still find that no substantial hardship exists if other, less but suitably qualified individuals . . . are available to fill the vacancy."). At present, we have no information relative to the qualifications, or lack thereof, of the other twenty-five (25) candidates. Accordingly, we are unable to determine that the Canvassing Authority or the City of East Providence will suffer a substantial hardship if the Petitioner is not permitted to accept the position of Canvassing Authority Office Administrator within one year of his membership on the Authority. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-7(a) 36-14-5006 Related Advisory Opinions: 2010-10 2004-36 2003-65 2001-53 2000-32 2000-4 99-104 99-94 99-76 99-60 98-104 97-138 97-117 97-41 97-26 97-17 96-85 96-79 Keywords: Appointing authority Revolving door