Advisory Opinion No. 95-88

Re: Kevin J. McAllister, Esq.

A. QUESTION PRESENTED

Whether Kevin J. McAllister, a member on the Cranston City Council who also is listed as a private attorney qualified to serve as a Hearing Officer for the Narragansett Bay Commission (NBC), may participate in decisions involving NBC's offer to purchase the City's sewer plant and sewer system.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that, notwithstanding the fact that he has served as a Hearing Officer and continues to remain on a list of attorneys qualified to serve in that position, the petitioner may participate in City Council decisions involving NBC's offer to purchase the City's sewer plant and sewer system. However, if the City Council approves the purchase proposal, the petitioner should decline a future appointment as a Hearing Officer to any case which involves a party or corporation that became subject to NBC's jurisdiction as a result of this agreement.

C. DISCUSSION

1. Facts

The petitioner, a Cranston City Councilor, operates a private law practice in Providence, RI. As part of this practice, the petitioner has served as a Hearing Officer for the NBC, the authority which operates and regulates waste-water treatment systems in much of the Greater Providence Area, for approximately six cases in the last five years, one of which required a full hearing and decision. The cases generally involved charges brought by the NBC against individuals or business for violations of its regulations. In his capacity as a Hearing Officer, the petitioner conducted an evidentiary hearing and, at the conclusion of the hearing, issued a decision which addressed the alleged violations. For serving as a Hearing Officer, NBC paid the petitioner an hourly rate.

The petitioner, although he has not served as a Hearing Officer for the last three years, remains on NBC's list of private attorneys who may serve as a Hearing Officer.(1) In July, the petitioner declined an appointment to serve as a Hearing Officer.

According to the petitioner, the City of Cranston is negotiating a deal with NBC to have that entity purchase the City's sewer plant and much of the sewer system. The petitioner believes that the parties have reached or will reach an agreement which will be subject to the City Council's and the Rhode Island General Assembly's approval. The City Council has not yet scheduled a hearing or vote on this issue. The petitioner advises, however, that a special meeting could be called to address the proposed agreement.

2. Analysis

The petitioner requests an advisory opinion as to whether he may participate and/or vote on issues relating to the NBC-City of Cranston sewerage purchase agreement while he is simultaneously listed as an attorney capable of serving as a NBC Hearings Officer. Under the Code of Ethics, the petitioner is prohibited from engaging in any business or professional activity which 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), 36-14-7. The petitioner is also prohibited from using his position or confidential information received though his position to obtain financial gain for himself or for any business by which he is employed. See R.I. Gen. Laws § 36-14-5(d). Additionally, pursuant to R.I. Gen. Laws § 36-14-5(b), the petitioner may not accept other employment which will either impair his independence of judgment as to his official duties or require him, or induce him, to disclose confidential information acquired by him in the course of his official duties.

After considering the petitioner's request, we conclude that the petitioner would not violate the Code if he participates in the City Council's discussions and\or votes on NBC's purchase proposal even though he served as a Hearing Officer for NBC and remains listed as an attorney qualified to serve as a Hearing Officer. In reaching this decision, the Commission has relied on the petitioner's representations that, as a Hearing Officer, he was not or is not privy to confidential information or any information concerning NBC's offer. However, should the City Council approve the purchase agreement, which would essentially expand NBC's jurisdiction to individuals and entities within Cranston, the petitioner should decline a future appointment as a Hearing Officer to any case which involves a party or corporation that became subject to NBC's jurisdiction as a result of this agreement to avoid any subsequent questions regarding his independence of judgment as to the votes at issue. See R.I. Gen. Laws § 36-14-5(b). In addition, the petitioner is advised to seek further guidance from this Commission if and when other situations arise which may create a conflict of interest because of his role as either a City Councilor or Hearing Officer.

Footnotes

(1) In his request, the petitioner indicated that for a six- year period in the 1980's he served as a volunteer, private citizen member of the Citizens Advisory Committee to NBC, a "watchdog committee." The petitioner also indicated that for one year during that period he served as Chairperson of that committee.

Keywords

Dual Public Roles

Purchasing

Prospective Employment