Advisory Opinion No. 95-92

Re: James A. Pitassi, Jr.

A. QUESTION PRESENTED

Whether the Code of Ethics will allow the American with Disabilities Act Coordinator employed by the Department of Administration, who simultaneously serves as an auxiliary member of the Johnston Zoning Board and is affiliated with three entities concerned with disabled individuals--as a member of the Board of Directors of the PARI Independent Living Center, an advocacy group for individuals with disabilities; as a member of the American with Disabilities Act Coalition of Rhode Island, a cooperative effort between the private and public sector to provide information and training to businesses concerning disabled individuals; and as a mediator for the Governor's Commission on the Handicapped--to participate and vote in his capacity as an auxiliary member of the Johnston Zoning Board on matters concerning the establishment of a facility for individuals with disabilities.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the American with Disabilities Act Coordinator employed by the Department of Administration, who simultaneously serves as an auxiliary member of the Johnston Zoning Board, may participate and vote on matters concerning facilities for individuals with disabilities in his capacity as an auxiliary member of the Johnston Zoning Board. The Commission notes the petitioner's affiliations with three other entities, all related to disabled individuals: as a member of the Board of Directors of the PARI Independent Living Center, an advocacy group for individuals with disabilities; as a member of the American with Disabilities Act Coalition of Rhode Island, a cooperative effort between the private and public sector to provide information and training to businesses concerning disabled individuals; and as a mediator with the Governor's Commission on the Handicapped.

However, the petitioner is cautioned that should any matters come before him as an auxiliary member of the Johnston Zoning Board which pertain to the PARI Independent Living Center, the Governor's Commission on the Handicapped, or the American with Disabilities Act Coalition of Rhode Island, or should any other matter arise whereby his various capacities impair his independence of judgement as to his official duties, or results in the disclosure of confidential information, he should: (a) notify the governmental entity in question, in writing, of the nature of his interest in any matter, and (b) recuse from participating in any such matter. Notice of any recusal must be filed with the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6.

Further, it is the opinion of this Commission that Mr. Pitassi should refrain form participating in the discussion of or take any official action relating to matters that come before him in his capacity as the ADA Coordinator at the Department of Administration which pertain to the PARI Independent Living Center. However, the petitioner may take part in matters involving the Governor's Commission on the Handicapped and the American with Disabilities Act Coalition of Rhode Island which come before him in his capacity as the ADA Coordinator due to the fact that he serves on the latter two bodies by virtue of his public employment. See Advisory Opinion 87-01.

C. DISCUSSION

1. Facts

James A. Pitassi, Jr., the American with Disabilities Act Coordinator (hereafter "ADA Coordinator") employed by the Department of Administration and an auxiliary member of the Johnston Zoning Board, requests an advisory opinion as to whether he may participate and vote on matters related to facilities for individuals with disabilities that may come before him in his capacity as an auxiliary member of the Johnston Zoning Board. In addition to his state employment and position on the Johnston Zoning Board, the petitioner is also affiliated with three bodies concerned with disabled individuals: as a member of the Board of Directors of the PARI Independent Living Center, an advocacy group for individuals with disabilities; as a member of the American with Disabilities Act Coalition of Rhode Island, a cooperative effort between the private and public sector to provide information and training to businesses concerning disabled individuals; and as a mediator with the Governor's Commission on the Handicapped.

The petitioner advises that in his capacity as the ADA Coordinator with the Department of Administration, his official responsibilities involve evaluating discrimination claims against the Department of Administration brought by individuals with disabilities. In addition, he is involved with developing policies and forms required by state agencies concerning individuals with disabilities. As a member of the Governor's Commission on the Handicapped, the petitioner serves as a mediator involving claims brought against state agencies other than the Department of Administration. The petitioner also advises that he is not responsible for making decisions concerning contracts in his official capacities.

2. Analysis

At issue in this advisory opinion request is whether the ADA Coordinator with the Department of Administration, who simultaneously serves as a mediator for the Governor's Commission on the Handicapped and is affiliated with two non-governmental entities also concerned with disabled individuals, may participate and vote on matters concerning facilities for individuals with disabilities in his third official capacity as an auxiliary member of the Johnston Zoning Board. Relevant Ethics Code provisions include R.I. Gen. Laws § 36-14-5(a), prohibiting a public employee or public official from having "any interest, financial or otherwise, direct or indirect, or engag[ing] in any business, employment, transaction or professional activity, or incur[ring] any obligation of any nature, which is in substantial conflict with the proper discharge of his or her duties or employment in the public interest;" R.I. Gen. Laws § 36-14-5(d), prohibiting a public employee or public official from "us[ing] in any way his or her public office or confidential information received through his or her holding any public office to obtain financial gain, other than that provided by law, for himself or herself or any person within his or her family or business associate;" and R.I. Gen. Laws § 36-14-5(e)(2), prohibiting a public employee or public official from "represent[ing] any other person before any state or municipal agency of which he or she is a member or by which he or she is employed."

It is the opinion of the Rhode Island Ethics Commission that the American with Disabilities Act Coordinator employed by the Department of Administration, who is simultaneously an auxiliary member of the Johnston Zoning Board, may participate and vote on matters concerning facilities for individuals with disabilities in his capacity as a member of the Johnston Zoning Board. The Commission notes the petitioner's affiliations with three other entities, all related to disabled individuals: as a member of the Board of Directors of the PARI Independent Living Center, an advocacy group for individuals with disabilities; as a member of the American with Disabilities Act Coalition of Rhode Island, a cooperative effort between the private and public sector to provide information and training to businesses concerning disabled individuals; and as a mediator with the Governor's Commission on the Handicapped.

However, the petitioner is cautioned that should any matters come before him as an auxiliary member of the Zoning Board which pertain to the PARI Independent Living Center, the Governor's Commission on the Handicapped, or the American with Disabilities Act Coalition of Rhode Island, or should any other matter arise whereby his various public and non-profit affiliations may impair his independence of judgement as to his official duties, or result in the disclosure of confidential information, he should: (a) notify the governmental entity in question, in writing, of the nature of his interest in any matter, and (b) recuse from participating in any such matter. Notice of any recusal must be filed with the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6.

Further, it is the opinion of this Commission that Mr. Pitassi should refrain form participating in the discussion of or take any official action relating to any matters that come before him in his capacity as the ADA Coordinator at the Department of Administration which pertain to the PARI Independent Living Center. However, the petitioner may take part in matters involving the Governor's Commission on the Handicapped and the American with Disabilities Act Coalition of Rhode Island which come before him in his capacity as the ADA Coordinator due to the fact that he serves on the latter two bodies by virtue of his public employment. See Advisory Opinion 87-01.

This opinion is consistent with previous holdings involving state employees serving in other public and private capacities on entities pertaining to common or interrelated issues. In 1987, the Commission ruled that the Supervisory Sanitary Engineer with the Rhode Island Department of Environmental Management (RIDEM) may serve on the North Smithfield Sewer Board while also serving as an ex-officio Commissioner on the Blackstone Valley District Commission. The petitioner in that matter was cautioned to refrain from matters involving RIDEM while on the North Smithfield Sewer Board, and to refrain from participating in discussions, influencing, or voting on any matters when the North Smithfield Sewer Board appears before or has its interests appear before RIDEM. See Advisory Opinion 87-16. In 1993, the Commission concluded that an employee of the University of Rhode Island Coastal Resources Center (CRC) may simultaneously serve on the Rhode Island Coastal Resources Management Council (CRMC) and the Warwick Harbor Commission. Again, the petitioner was cautioned to exercise notice and recusal when, for example, matters appear before the CRMC involving the CRC or the Warwick Harbor Commission. The petitioner was further cautioned that if the working relationship between the entities to which she is associated were to be or become so interrelated that frequent recusals are required, she would be in violation of Regulation 36-14-5003. See Advisory Opinion 93-44.

Keywords

Dual Public Roles

Non-profit Boards