Advisory Opinion No. 95-98

Re: Carolyn Weymouth

A. QUESTION PRESENTED

Whether an employee in the Department of Environmental Management (DEM) may assume the position of director and/or chair of the Northern Rhode Island Conservation District, a local government unit, when the same Conservation District receives grant money for specific projects from a DEM program overseen by the petitioner's immediate supervisor.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that no violation of the Code of Ethics will arise solely by virtue of the fact that Carolyn Weymouth, a Senior Environmental Scientist employed by the Department of Environmental Management (DEM) or any other similarly situated employee at DEM simultaneously serves as director and/or chair of the Northern Rhode Island Conservation District. Such a duality of status, in and of itself, does not violate the Code of Ethics in view of the fact that the petitioner advises that she does not presently, nor does she intend to, participate in DEM matters which come before her as a member of NRICD or NRICD matters that might come before her in her employment with DEM.

However, the petitioner is cautioned and advised that in connection with each of her official responsibilities she should take no action which will be in substantial conflict with the proper discharge of her duties in the public interest, impairs her independence of judgement as to her official duties, or otherwise results in the disclosure of confidential information. Accordingly, whenever a matter appears before her as a Senior Environmental Scientist at the Department of Environmental Management which specifically relates to the Northern Rhode Island Conservation District or whenever a matter appears before her as either the Chair or the Director of the Conservation District which specifically involves the Department of Environmental Management, she should (a) notify the respective entity, in writing, of the nature of her interest in the matter, and (b) refrain and recuse from participating or voting in connection with said matter.

C. DISCUSSION

1. Facts

Carolyn Weymouth, a Senior Environmental Scientist with the Department of Environmental Management (DEM), simultaneously serves as the Director of the Northern Rhode Island Conservation District, and has served in the latter capacity for a number of years. In her position as Senior Environmental Scientist in DEM's Office of Environmental Coordination, the petitioner is assigned to the Coordination Program. Her responsibilities involve the following: (a) reviewing federal projects by gathering comments concerning said projects from other divisions within DEM towards the preparation of letters of comment as required by the National Environmental Protection Act; (b) solid waste management planning; and (c) the pollution prevention program.

The Northern Rhode Island Conservation District, one of three in the State, is a tax-exempt, local government unit, which is headed by a volunteer board of directors and is overseen by the State Conservation Committee. For the last two years, the petitioner has also served as Vice Chair for this entity. The petitioner advises that she assumed the position of Director of the Conservation District only after approaching her agency about her interest in assuming this position and being permitted to do so. Although NRICD did not receive funding from DEM when the petitioner became one of the directors of the Conservation District, NRICD now receives grants for specific projects from the Department of Environmental Management's Nonpoint Source Program ("the Program"), a program overseen by her immediate supervisor. Recently, the Conservation District received $85,000 in grants for two projects from the Program.

In addition, the petitioner advises that she does not realize any personal benefit form the NRICD grants and does not vote on any issues related to the funded projects or any other DEM matters in her present capacity as director of the Conservation District. The petitioner requests guidance as to whether the Code of Ethics will allow her and other similarly situated employees at DEM to assume the position of director and/or chair of the Conservation District. When the Conservation District's chair resigned unexpectedly, she was asked to assume this position.

2. Analysis

At issue in this advisory opinion request is whether an employee of the Department of Environmental Management (DEM) may accept the position of director and/or chair of the Northern Rhode Island Conservation District when said Conservation District receives funding from the agency by which she is employed and when her immediate supervisor oversees the program at DEM that provides the funding. 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.

(e) No person subject to this Code of Ethics shall:

(2) Represent 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.

(h) No person subject to this Code of Ethics and or any person within his or her family or business associate of the person or any business entity in which the person or any person within his or her family or business associate of the person has a ten percent (10%) or greater equity interest or five thousand dollars ($5,000) or greater cash value interest, shall enter into any contract with any state or municipal agency unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded; provided, however, that contracts for professional services which have been customarily awarded without competitive bidding shall not be subject to competitive bidding if awarded through a process of public notice and disclosure of financial details.

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 no violation of the Code of Ethics will arise solely by virtue of the fact that Carolyn Weymouth, a Senior Environmental Scientist employed by the Department of Environmental Management (DEM) or any other similarly situated employee at DEM simultaneously serves as director and/or chair of the Northern Rhode Island Conservation District. Such a duality of status, in and of itself, does not violate the Code of Ethics in view of the fact that the petitioner advises that she does not presently, nor does she intend to, participate in DEM matters which come before her as a member of NRICD, and her employment at DEM does not involve matters affecting NRICD.

The Commission has consistently held that a public employee or official may maintain two positions provided that he or she exercises notice and recusal whenever the interest of one of the entities appears before the other except in instances in which notice and recusal are relied upon on a regular basis as prohibited by Regulation 36-14-5003 of the R.I. Gen. Laws. In a previous Commission holding reflecting facts comparable to those presented herein, this Commission concluded that the Director of Economic Development may serve as a trustee of Roger Williams College, even though that institution would be coming before his agency concerning a land donation, provided that the petitioner did not participate in any matter pertaining to the College in his public capacity. See Advisory Opinion 91-86.

Keywords

Dual Public Roles

Grants