Advisory Opinion No. 2010-57 Rhode Island Ethics Commission Advisory Opinion No. 2010-57 Re: Gary Cote QUESTION PRESENTED The Petitioner, the Chairman of the Board of Directors of the Coventry Fire District, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits his holding office as a member of the Coventry Town Council. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, the Chairman of the Board of Directors of the Coventry Fire District, a municipal elected position, from simultaneously holding office as a member of the Coventry Town Council, also a municipal elected position. The Petitioner is the Chairman of the Board of Directors of the Coventry Fire District (“Fire District”). He represents that the Fire District is a separate entity from the Town of Coventry (“Town”), holding its own annual meetings, maintaining its own budget, and assessing and collecting its own taxes as authorized by legislative charter. He further represents that the Fire District is one of four fire districts located within the Town. The Petitioner notes that property owners in the Town receive separate tax bills, one from the Town and another from their respective fire district. According to the Petitioner, the Charter and Bylaws of the Fire District do not appear to prohibit an elected board member from serving in another public capacity. The Petitioner informs that he was elected to the Town Council on November 2, 2010 and expects to be sworn into office on November 22, 2010. The Petitioner notes that section 3.03 of Coventry’s Home Rule Charter prohibits Council members from holding, “other public office or employment in the service of the Town of Coventry, the State of Rhode Island, or the government of the United States[.]” It is the Petitioner’s understanding that the Fire District, as an independent entity, does not fall within the Home Rule Charter’s prohibition on dual office holding. At the outset, we find it necessary to clarify that our jurisdiction applies only to the enactment, application, interpretation, and enforcement of the Rhode Island Code of Ethics. Whether the Petitioner’s dual office holding violates the Coventry Home Rule Charter, the Coventry Fire District Charter or Bylaws, or any other provision is not for the Ethics Commission to determine. Accordingly, the sole issue before us is whether the Code of Ethics prohibits the Petitioner from simultaneously holding office as a member of the Town Council and as a Director of 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. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if 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. Section 36-14-7(a). A public official or employee is also prohibited 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. Section 36-14-5(b). Finally, 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. Section 36-14-5(d). 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.” Section 36-14-2(2). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7). In this case, given the fact that neither the Fire District nor Town Council are considered businesses according to the definitions in the Code, the “business associates” prohibitions that would otherwise constrain the Petitioner while carrying out his public duties do not apply with respect to these two entities. See A.O. 2010-48 (opining that the East Greenwich Fire District and the East Greenwich Town Council are not considered “businesses” as defined in the Code); A.O. 2002-55 (opining that the term “business” as used in the Code does not include public entities such as the Town of Richmond). Accordingly, 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 member of the Town Council and as a Director of the Fire District. See A.O. 2010-48 (opining that the Code does not bar simultaneous service as a Fire Commissioner for the East Greenwich Fire District and as a member of the East Greenwich Town Council); A.O. 2008-64 (opining that the Code does not bar simultaneous service as a member of the Richmond Planning Board and as a member of the Richmond Rural Preservation Trust). However, the above referenced provisions of the Code of Ethics require a matter by matter evaluation to determine whether substantial conflicts exist with respect to carrying out an official’s duty in the public interest. Therefore, the Petitioner is cautioned 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 § 36-14-6. Finally, as previously stated, 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, bylaws, 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) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2010-48 A.O. 2008-64 A.O. 2002-55 Keywords: Business Associate Dual Public Roles