Advisory Opinion No. 95-97

Re: Janet Keller

A. QUESTION PRESENTED

Whether the Chief of Environmental Coordination at the Department of Environmental Management may lobby the Rhode Island Transportation Advisory Committee and other public officials, including members of the General Assembly, the Director of the Department of Transportation, and city officials, for the approval of a proposal to said Advisory Committee in her private capacity as the chair of the Westminster Street Revitalization Committee of the West Broadway Association.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that Janet Keller, Chief of the Office of Environmental Coordination, should not carry out lobbying efforts in her private capacity as chair of the Westminster Street Revitalization Committee of the West Broadway Association when such lobbying efforts involve individuals or businesses that currently have, or potentially may have, business before her division of DEM. This Commission bases its opinion on the petitioner's representations that the lobbying efforts could include such individuals or businesses. Although the petitioner's public position does not directly relate to the issues addressed in her lobbying efforts, such activity by an official of DEM in her private capacity among individuals and entities over whom she may have discretionary power in her public capacity falls within the prohibitions of the Code of Ethics. See R.I. Gen. Laws §§ 36-14-1 and 36-14-5(a), (b), and (d).

The Commission further recognizes that the petitioner and DEM may be able to contend with this problem by completely insulating Ms. Keller from any decisions undertaken in her official capacity that involve or affect individuals or businesses that she may lobby. Obviously, whether to pursue that type of approach is a decision for Ms. Keller and DEM. The Commission notes, however, that public policy, as reflected in Commission Regulation 36-14-5003, weighs against public officials or employees placing themselves in positions in which frequent recusals from these public responsibilities are required.

Also, the petitioner is advised that in the event her duality of status impairs her independence of judgement as to her official duties or otherwise results in the disclosure of confidential information, and whenever a matter appears before her as the Chief of the Office of Environmental Coordination which specifically relates to the West Broadway Association, she should (a) notify the Department of Environmental Management in writing of the nature of her interest in the matter and (b) refrain from participating in connection with said matter.

C. DISCUSSION

1. Facts

Janet Keller, employed as the Chief of the Office of Environmental Coordination at the Department of Environmental Management, also serves as the chair of the Westminster Street Revitalization Committee of the West Broadway Association, a non-profit organization. The petitioner advises that as chair of the aforementioned committee she has been involved in lobbying the Rhode Island Transportation Advisory Committee to approve the City of Providence's proposal to repave Westminster Street between Route 95 and Olneyville, to install pedestrian and bicycle improvements, and to landscape the designated area. She requests an advisory opinion as to whether she may continue to be involved in these lobbying efforts.

In her private capacity, the petitioner serves as the chair of the Westminster Street Revitalization Committee of the West Broadway Association, a multi-purpose non-profit organization with the mission of community building through various efforts, including renovating historically and architecturally significant houses in conjunction with the Providence Preservation Society and the Revolving Fund, as well as organizing neighborhood festivals and cleanups. The Westminster Street Revitalization Committee is specifically charged with attracting small businesses to the Westminster Street area.

As Chief of the Office of Environmental Coordination (OEC), the petitioner advises that she oversees a branch of the Department of Environmental Management (DEM) which has only minor regulatory responsibilities, involving only the enforcement of business recycling and automobile battery recycling. Rather, most of OEC's activities involve the following: pollution prevention by providing guidance to firms on how to reduce hazardous waste; building and operating the Fields Point sewage treatment facility; planning and public relations concerning the State's recycling efforts; litter prevention and control; non-point source pollution prevention; and planning concerning solid waste disposal. In addition, major permits are reviewed within OEC; one staff member has the responsibility of coordinating all of the comments concerning such permits gathered from other divisions within DEM as required by the National Environmental Protection Act and other federal regulations.

The petitioner also advises that her position at DEM is a highly visible one, involving interaction with various segments of the community. She also advises that some of the officials she would approach in her lobbying efforts on behalf of the West Broadway Association in support of the City of Providence proposal to the Rhode Island Transportation Advisory Committee are officials with whom she has contact in her public capacity. The petitioner advises that in addition to said Advisory Committee,(1) other officials will be lobbied, including the General Assembly, the Director of the Department of Transportation, as well as City of Providence officials. To date, she and others have approached the Lieutenant Governor concerning this issue. It is conceivable that the citizens and businesses included in the Transportation Advisory Committee may appear before OEC concerning recycling or hazardous waste issues.

2. Analysis

At issue in this advisory opinion request is whether the Chief of the Office of Environmental Coordination at the Department of Environmental Management may carry out lobbying efforts in her private capacity as the member of a neighborhood association. Relevant provisions of the Code of Ethics include the following:

R.I. Gen. Laws § 36-14-1 Declaration of Policy. It is the policy of the state of Rhode Island that public officials and employees must adhere to the highest standards of ethical conduct, respect the public trust and the rights of all persons, be open, accountable and responsive, avoid the appearance of impropriety, and not use their position for private gain or advantage.

R.I. Gen. Laws § 36-14-5 Prohibited Activities.

(a) No person subject to this Code of Ethics shall have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity, or incur 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 and of his or her responsibilities as prescribed in the laws of this state, as defined in section 36-14-7.

(b) No person subject to this Code of Ethics shall accept other employment which will either impair his or her independence of judgment as to his or her official duties or employment or require him or her, or induce him or her, to disclose confidential information acquired by him or her in the course of and by reason of his or her official duties.

(d) No person subject to this Code of Ethics shall use 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 him or herself or any person within his or her family or business associate or any business by which the person is employed or which the person represents.

Regulation 36-14-5003 Limitations on recusal.

The notice and recusal provisions of sections 36-14-5 (e)(l) and 36-14-5(f) shall not be interpreted so as to permit a person subject to this chapter to make use of such provisions on a regular basis. If such actions occur with such frequency as to give the appearance of impropriety, the person subject to this chapter may be deemed to have violated the provisions of this chapter, unless such actions are necessitated by circumstances beyond the control of such person and are the only legal course of action available to such person in order to protect a vested property interest.

R.I. Gen. Laws § 36-14-7 Interest in conflict with discharge of duties.

(a) A person subject to this Code of Ethics has an interest which is in substantial conflict with the proper discharge of his or her duties or employment in the public interest and of his or her responsibilities as prescribed in the laws of this state, if he or she has reason to believe or expect that he or she or any person within his or her family or any business associate, or any business by which the person is employed or which the person represents will derive a direct monetary gain or suffer a direct monetary loss, as the case may be, by reason of his or her official activity.

It is the opinion of the Rhode Island Ethics Commission that Janet Keller, Chief of the Office of Environmental Coordination, should not carry out lobbying efforts in her private capacity as chair of the Westminster Street Revitalization Committee of the West Broadway Association when such lobbying efforts involve individuals or businesses that currently have, or potentially may have, business before her division of DEM. We base our opinion on the petitioner's representations that her lobbying efforts may include such individuals or businesses. Although the petitioner's public position does not directly relate to the issues addressed in her lobbying efforts, such activity by an official of DEM in her private capacity among individuals and entities over whom she may have discretionary power in her public capacity falls within the prohibitions of the Code of Ethics. See R.I. Gen. Laws §§ 36-14-1 and 36-14-5(a), (b), and (d).

Finally, the petitioner is advised that in the event her duality of status impairs her independence of judgement as to her official duties or otherwise results in the disclosure of confidential information, and whenever a matter appears before her as the Chief of the Office of Environmental Coordination which specifically relates to the West Broadway Association, she should (a) notify the Department of Environmental Management, in writing, of the nature of her interest in the matter, and (b) refrain from participating in connection with said matter.

Footnotes

(1)With her advisory opinion, the petitioner included a membership list of the Rhode Island Transportation Advisory Committee.

Keywords

Lobbying

Non-profit Boards

Acting as Agent