Advisory Opinion No. 95-62

Re: Roland C. Moussally & William J. Masse

A. QUESTIONS PRESENTED

  1. Whether the Pawtucket Housing Authority's officials and employees are subject to the provisions of the Rhode Island Code of Ethics?
  2. Whether William J. Masse, a Commissioner of the Pawtucket Housing Authority, may run for an elected position as a City Councilor or State Representative without first resigning from the Board of Commissioners?

B. SUMMARY

  1. It is the opinion of the Commission that officials and employees of the Pawtucket Housing Authority are subject to the Code since (a) the Commissioners of the Housing Authority are appointed by the Mayor, the highest governing municipal official; and (b) the Housing Authority implements housing programs and thus acts in more than an advisory nature.
  2. The Code of Ethics does not prohibit Mr. Masse, a Commissioner of the Pawtucket Housing Authority from simultaneously running for office as either a City Councilor or State Representative. However, if elected to public office, Mr. Masse is cautioned and advised that in the event the duality of status impairs his independence of judgment or requires him to disclose confidential information, he should (a) notify the appropriate state or municipal department in writing of the nature of the interest or conflict; and (b) refrain from participating in any related matter.

C. DISCUSSION

1. Facts

The Pawtucket Housing Authority implements and oversees programs of the Department of Housing and Urban Development (HUD) which provide public and "section 8" housing to residents of Pawtucket. An employee of the Housing Authority, James Goff, advises that HUD funds the Housing Authority's programs and that neither the City nor the State provides any funding to the Authority. The Housing Authority presently manages four elderly housing units and two family units. For property under its control, the Authority is required to pay the City a fee in lieu of taxation pursuant to HUD guidelines.

A Board of Commissioners (Board), whose members are appointed by the Mayor of Pawtucket and paid by the City, manage the operations of the Housing Authority. An Executive Director, who is selected by the Board, oversees the daily operations of the Housing Authority. The employees of the Housing Authority are paid by the Housing Authority and are members of the State Retirement Plan.

2. Analysis

First at issue in this advisory request is whether the members of the Pawtucket Housing Authority are persons subject to the Code of Ethics. Under R.I. Gen. Laws § 36-14-4, individuals who are municipal appointed officials or employees of local governmental boards or agencies are subject to the provisions of the Code. A municipal agency is defined as "any . . . authority, quasi-public authority . . . within Rhode Island, other than a state agency and any other agency that is in any branch of municipal government and exercises governmental functions other than in an advisory nature." R.I. Gen. Laws § 36-14-4(b). A municipal appointed official is defined as any member of a municipal agency who is appointed for a specified term of office or who is appointed by or through the governing body or highest official of the municipal government. See R.I. Gen. Laws § 36-14-2(2). An employee of a local governmental board or agency is defined as any full-time or part-time employee in the classified, non-classified and unclassified service of any city or town within the state; any individual serving in any appointed state or municipal position; or any employee of any public or quasi-public state or municipal board, Commission or corporation. See R.I. Gen. Laws § 36-14-2(3).

After reviewing the Housing Authority's organizational framework and responsibilities, the Commission concludes that the Pawtucket Housing Authority is a municipal agency and, as such, its officials and employees are subject to the Code. In reaching this conclusion, the Commission has relied on the fact that (1) the members of the Board are appointed by the Mayor, the highest official of the municipal government; and (2) the Housing Authority implements and oversees programs of the Department of Housing and Urban Development (HUD) and, as such, "exercises governmental functions other than in an advisory nature." See A.O. 78-5 (concluding that the Conflict of Interest Law (now the Code of Ethics) applied to the Warwick Housing Authority since the powers of the Authority were not strictly advisory in nature and the members of the Housing Authority were appointed officials); A.O. 77-139 (recognizing that the Conflict of Interest Law applied to the East Greenwich Housing Authority since its powers were not strictly advisory in nature) .

The second issue raised in this request concerns whether a Commissioner may run for an elected position as either a City Councilor or State Representative without resigning his or her position as a Commissioner. Under the Code of Ethics, a person subject to the Code may not accept any other employment which will impair his or her independence of judgment as to his or her official duties of employment or require him or her to disclose confidential information acquired in the course of his or her official duties. See R.I. Gen. Laws § 36-14-5(b).

As to whether a Commissioner may seek office as a State Representative while serving as a Commissioner, we conclude that the Code does not prevent this activity. We note that the positions of Commissioner and Representative do not conflict since the House of Representatives does not control or interact in any significant way with the Housing Authority. Accordingly, we advise that the Code does not prohibit Mr. Masse from pursuing office as a State Representative. Nevertheless, in the event that Mr. Masse obtains a seat, he is advised that, if the duality of status impairs his independence of judgment or requires him to disclose confidential information, he should (a) notify the appropriate state or municipal department in writing of the nature of the interest or conflict; and (b) refrain from participating in any related matter.

Concerning the issue of whether a Commissioner may run for office as a City Councilor, we advise that the Code of Ethics permits Mr. Masse to run for this municipal office without first resigning as a Commissioner. We caution, however, that if elected to this office, a position which requires him to review and/or vote on a number of property issues, the Commissioner may find that he is faced with numerous conflicts which require his recusal from either Board or City Council matters on a regular basis, thereby triggering Regulation 36-14-5003's limitation of recusals. If such a situation develops, the Commissioner is advised that he should seek another advisory opinion as to whether he may simultaneously serve as a Commissioner and City Councilor. See A.O. 90-11 (opining that the Code of Ethics prohibits the requesting party to simultaneously serve as an Assistant City Solicitor for Woonsocket and as Legal Counsel to the Woonsocket Housing Authority since such dual status, at a minimum, would represent the acceptance of employment which could impair the petitioner's independence of judgment in connection with his official duties as an Assistant City Solicitor or induce him to disclose confidential information).

Keywords

Code Jurisdiction

Dual Public Roles

Candidate