AMENDED Advisory Opinion No. 95-36

Re: The Honorable Brock D. Bierman

This advisory opinion is addressed to Brock D. Bierman, District 23 Representative in the General Assembly. Mr. Bierman advises that, in his capacity as a member of the House of Representatives, he is presently being considered for membership and chairmanship on the Special Legislative Commission to Study Licensing Procedures for Private Detectives. He also advises that for the past twelve years he has been the owner of an investigative business, Investigative Services, Inc. in Warwick, which he describes as being involved in the general investigative business.

The Code of Ethics advises that a person subject to the Code has an interest in substantial conflict with the proper discharge of his or her duties or employment in the public interest if he or she or business associates have reason to believe or expect to derive a direct monetary gain or suffer a direct monetary loss by reason of official action [R.I. Gen. Laws 36-14-7(a)]. In addition, the Code of Ethics advises that no individual subject to the Code shall have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity which is in conflict with the proper discharge of his or her duties in the public interest [R.I. Gen. Laws 36-14-5 (a)]. In light of Mr. Bierman's personal financial interest in the investigative business, and the fact that he and/or his business associates are to be subject to the recommendations of the Special Legislative Commission to Study the Licensing Procedures for Private Detectives if these recommendations should be implemented, accepting the position of member or chair of the commission in question may lead to direct monetary gain or monetary loss to him or his business associates. Furthermore, his duality of status presents an appearance of impropriety.

The Commission has previously opined concerning the problematic nature of an employee of a particular body holding a license from that same body. In 1993, the Commission ruled that "A violation of the Code will result for any individual to hold an active license from a department division in which that particular employee is working due to what could be perceived as an unfair advantage in connection with the licensing process and licensing standards and what we perceive as a clear appearance of impropriety [A. O. 93-70]." Although Mr. Bierman is not an employee of the governmental body in question, and he is not going to be involved directly in licensing individuals, he will play a policymaking role that will have material effects on a sector in which the petitioner is employed and in which he or his business associates are licensed. This duality of status may preclude his serving the public interest by impairing his independence of judgement.

Additional Commission rulings are relevant to Mr. Bierman's Advisory Opinion request. In 1991, the Commission ruled that a member of the Bristol Town Council employed as a liquor salesman should not "participate or vote on matters concerning issuance or renewal of liquor licenses...or any licenses for establishments which may affect liquor purchases by those establishments" given that his employer could benefit financially due to his official position [A.O. 91-41]. In 1980, the Commission ruled that a Representative would be open to allegations of conflict of interest if he were to accept a seat on the Lottery Commission while maintaining a license as a lottery ticket sales agent [A.O. 80-09]. In addition, the Commission ruled in Advisory Opinions 92-28 and 92-30 that State Representatives would violate the Code of Ethics if they were to sponsor or vote on legislation relating to the sector in which they are employed. Given that Mr. Bierman and/or his business associates in the investigative business are going to be subject to recommendations made by the Special Legislative Commission in their mandate to study licensing procedures, these concerns with appearance and the potential for financial benefit derived from an official position discussed above hold.

We advise Mr. Bierman not to accept membership or chairmanship on the Special Legislative Commission to Study the Licensing Procedures for Private Detectives in his capacity as a State Representative in light of his duality of status as the owner of an investigative business. However, the petitioner is not precluded from answering any inquiries from his colleagues and participating in expressing his own viewpoints in public forums under Regulation 36-14-7003.

As discussed during the May 10 hearing regarding Mr. Bierman's request for an Advisory Opinion, the Commission is in the midst of revising the Code of Ethics. A revision being discussed would allow greater flexibility for participation in certain legislative activities by members of the General Assembly so that, as in this instance, members with expertise in certain subject areas would not be barred from contributing that expertise to the legislative process.

Finally, at the May 10 meeting the Commission suggested to Mr. Bierman that a possible course of action for him to pursue was to participate on the Special Legislative Commission as an ex officio, and non-voting member. By letter, Mr. Bierman has indicated that he would like to participate in that manner and the Commission, with this Advisory Opinion, endorses that course of action in this instance.

Keywords

Financial Interest

Business Interest

Licensing

Ex-Officio