Advisory Opinion No. 2010-48 Rhode Island Ethics Commission Advisory Opinion No. 2010-48 Re: Mark W. Gee QUESTION PRESENTED The Petitioner, a Fire Commissioner for the East Greenwich Fire District, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits his seeking or holding office as a member of the East Greenwich Town Council. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a Fire Commissioner for the East Greenwich Fire District, a municipal elected position, from seeking or holding office as a member of the East Greenwich Town Council. The Petitioner is currently a Fire Commissioner for the East Greenwich Fire District ("Fire District"), having been elected to a three-year term of office in June 2007. He states that the Fire District provides fire and rescue services to the Town of East Greenwich ("the Town") and to a part of the City of Warwick. The Petitioner informs that the Fire District is independent of the Town and holds its own charter from the State of Rhode Island, but that the East Greenwich Town Council ("Town Council") and the Fire District act cooperatively on matters pertaining to emergency management, and on other operational issues such as administrative tax billing and accounting. To that end, the Fire District and the Town Council meet on a quarterly basis to discuss issues of common interest and to share information. The Petitioner states that he is currently a candidate for the Town Council. He asks whether, if elected, the Code of Ethics prohibits him from holding office as a member of the Town Council while simultaneously holding office as a Fire Commissioner for the Fire District. Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if, for example, an official has reason to believe or expect that he, any person within his family, a business associate or an employer 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). 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, a family member, employer, business associate, or a business that he represents. A business is defined as “a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, trust or any other entity recognized in law through which business for profit or not for profit is conducted.” R.I. Gen. Laws § 36-14-2(2). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3). A person is defined as “an individual or a business entity.” R.I. Gen. Laws § 36-14-2(7). Initially, the Commission concludes that the aforementioned provisions of the Code of Ethics do not create a bar to the Petitioner’s simultaneous service as both a Fire Commissioner and a member of the Town Council. See A.O. 2002-62 (Code of Ethics does not bar simultaneous service on the Burrillville Town Council and the Burrillville Housing Authority Board of Commissioners); A.O. 97-17 (member of Bristol County Water Authority Board of Directors who was subsequently elected to Bristol Town Council may serve in both public roles simultaneously). See also A.O. 2008-64 (member of both the Richmond Planning Board and the Richmond Rural Preservation Trust was not barred from simultaneously holding both public positions); A.O. 99-100 (opining that a Tiverton Planning Board member was not inherently prohibited from simultaneously serving on the Tiverton Conservation Commission). Instead, the Code of Ethics requires 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. As neither the Fire District nor the Town Council are considered to be “businesses” as that term is defined in the Code, prohibitions regarding “business associates” that would otherwise constrain the Petitioner while carrying out his public duties do not apply regarding these two public entities. See A.O. 2008-40 (opining that the Town of Warren and the Warren Town Council are not considered to be "businesses" or "business associates" under the Code of Ethics); A.O. 2003-61 (Code of Ethics does not consider relationship between public official and public body to be that of "business associates"); A.O. 2002-55 (term "business" as used in the Code of Ethics does not include public entities such as the Town of Richmond). The Petitioner is cautioned, however, that if any matters should come before him as he is carrying out his duties in either of his public roles that present any other potential conflict of interest which is not otherwise contemplated in this advisory opinion, or circumstances in which it is reasonably foreseeable that there will be a financial impact upon the Petitioner personally, he should either request further advice from this Commission or exercise the recusal provision found at R.I. Gen. Laws § 36-14-6. Finally, this opinion solely addresses whether the Code of Ethics prohibits the Petitioner from simultaneously holding these respective positions. This opinion does not, and cannot, address whether any other statutes, charters, ordinances, rulings or policies prohibit such simultaneous service. Code Citations: § 36-14-2(2) § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-5(f) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2008-40 A.O. 2003-61 A.O. 2002-62 A.O. 2002-55 A.O. 99-100 A.O. 97-17 Keywords: Business Associate Dual Public Roles