Advisory Opinion No. 2010-34 Rhode Island Ethics Commission Advisory Opinion No. 2010-34 Re: Robert D. Frost QUESTION PRESENTED The Petitioner, a member of Charlestown’s Wastewater Management Commission, a municipal appointed position, requests an advisory opinion as to whether he may participate in discussion and vote regarding the drafting of an ordinance as to septic system design and installation, notwithstanding the fact that he is a dealer of a product that utilizes the technology that would be incorporated into the ordinance. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a member of Charlestown’s Wastewater Management Commission, a municipal appointed position, may not participate in discussion and vote regarding the drafting of an ordinance as to septic system design and installation, given the fact that he is a dealer of a product that utilizes the technology that would be incorporated into the ordinance. The Petitioner is a member of the Charlestown Wastewater Management Commission (“the WMC”) and was appointed to that entity in 2005. He states that in his private capacity he has been a licensed installer of septic systems for approximately 25 years. He represents that in the fall of 2009, the WMC began to search for ways to improve the onsite wastewater treatment systems in the town, while simultaneously looking to reduce the cost and impact to residents. He states that this action came about because the Rhode Island Department of Environmental Management (“DEM”) has mandated the removal of all cesspools and the implementation of nitrogen technologies in sensitive coastal areas of Charlestown, which the Petitioner states “was burdening our taxpayers with great expense.” The Petitioner represents that the WMC conducted a technology search and identified a suitable product, called the “White Knight.” The WMC then had discussion with Robert Silva of Septic Preservation Services, who indicated that the White Knight system offers some denitrification capability and had been installed in a home in Charlestown for the purpose of remediating a clogged drain field. The WMC was then given a site visit and demonstration of the local installation, followed by a product demonstration. The Petitioner was sufficiently impressed such that he decided to install the “White Knight” on his own property and, additionally, decided to become a dealer of the product. Subsequently, the WMC initiated the drafting of an ordinance governing septic system design and installation which includes provisions regarding the technology utilized by the “White Knight” product. The Petitioner notes that there are two other products utilizing the same underlying technology as the “White Knight,” which are currently in the process of receiving approval from DEM. In phone conversation with Staff subsequent to the receipt of the Petitioner’s request, the Petitioner stated that there are only a very small number of dealers of the product in Rhode Island and that he intends to sell the product to Charlestown residents. The Petitioner states that DEM will have to approve the WMC’s ordinance and plan in order for the Town to move forward with it. Given this set of facts, the Petitioner asks whether he can participate in discussion and voting regarding the draft ordinance which would incorporate the technology used by the “White Knight,” notwithstanding the fact that the Petitioner is a dealer of the “White Knight” in the State of Rhode Island. The Code of Ethics provides that a public official 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, among other reasons, the public official has reason to believe or expect that he 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). Additionally, a public official may not use his public office or confidential information received from his public office to obtain financial gain, other than that provided by law, for himself, a family member, business associate or private employer. See R.I. Gen. Laws § 36-14-5(d). The Ethics Commission has consistently opined that public officials may not participate in matters coming before them in their public capacities when it is reasonably foreseeable that such matters will have a direct financial impact on the official’s own business. See A.O. 2010-13 (opining that a member of the Block Island Planning Board, who is also the owner and innkeeper of the Atlantic Inn, located on Block Island, may not participate in discussion and voting on a recommendation by the Planning Board to the Town Council regarding an application by Ballard’s Inn, Realty, LLC, for a proposed amendment to the New Shoreham zoning ordinance, given that it is reasonably foreseeable that there could be a direct financial impact on the Petitioner’s business); A.O. 2005-1 (opining that a member of the New Shoreham Motor Vehicle for Hire Commission, who also held a taxi license, while not inherently prohibited from serving on that Commission, was prohibited by the Code from taking any actions that would result in a financial benefit to his business); A.O. 99-9 (opining that a Narragansett Town Councilor who owns a restaurant holding a liquor license could not participate in matters directly affecting his business); A.O. 98-111 (opining that members of the Rhode Island Real Estate Commission may teach continuing education classes for real estate agents provided that they recuse themselves from any and all matters concerning the regulation of continuing education classes). In this instance, the Petitioner is one of a very small number of dealers of the “White Knight” product in Rhode Island and the matter before the WMC involves the drafting of an ordinance and septic plan which would implement the use of the technology that the “White Knight” utilizes. As such, it is the opinion of the Ethics Commission that it is reasonably foreseeable that there will be a direct financial impact on the Petitioner’s business as a result of the WMC’s actions. Accordingly, it is the opinion of the Ethics Commission that the Petitioner may not participate in the WMC’s discussion and vote relative to the drafting of the ordinance or septic plan in question, given that he is a dealer of the “White Knight” product and intends to sell the product to the residents of Charlestown who would be subject to the ordinance. Finally, we note that this opinion only addresses the application of the Code of Ethics to the facts as represented by this Petitioner and does not, and cannot, address the impact of any other statute, charter, ordinance, ruling, or policy. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2010-13 A.O. 2005-1 A.O. 99-9 A.O. 98-111 Keywords: Financial Interest