Advisory Opinion No. 96-2

Re: Thomas Beauregard & Robert Gautreau

A. QUESTION PRESENTED

Two petitioners, the salaried General Manager of the Pascoag Fire District and an elected member of the Board of Commissioners (BUC) of the Pascoag Fire District request an advisory opinion as to whether they may continue to serve in their respective public positions given these circumstances: (a) as a member of the BUC the elected official annually reviews the General Manager's position and (b) in his private capacity the General Manager serves on a board of directors that has ultimate jurisdiction over the private employment of the BUC member.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the petitioners may continue to serve in their respective positions as General Manager for the Pascoag Fire District and as an elected member of the Board of Commissioners (BUC) for the Pascoag Fire District, provided that the BUC member recuses himself from participation in any matter relating to the General Manager.

C. DISCUSSION

1. Facts

The Pascoag Fire District, a quasi-municipal entity responsible for the fire and water departments in the village of Pascoag, owns and operates an electric company which serves approximately 4,000 businesses and residences in the village of Pascoag and other parts of Burrillville. The activities of the Pascoag Fire District are reviewed by the Board of Utility Commissioners, a volunteer seven-member, elected board. In September 1995, resident taxpayers of the District elected Robert Gautreau to this Board.

Thomas Beauregard, the General Manager of the Pascoag Fire District, oversees approximately 17 employees of the electric and water departments and reports directly to the Board of Utility Commissioners.(1) The Board of Utility Commissioners reviews the General Manager's position on an annual basis.(2)

In his private capacity, Mr. Gautreau is employed by the Northeast Public Power Association (NEPPA), an organization comprised of municipal electric companies located within New England, as the Director of Educational Services. The Board of Directors of NEPPA oversees the activities of this Association. Since 1992, Mr. Beauregard has served as member of the Board of Directors of NEPPA, a part-time unpaid position. Mr. Beauregard indicates that, although Mr. Gautreau's employment is reviewed by NEPPA's Executive Director, the Board of Directors of NEPPA have ultimate "jurisdiction" over all of NEPPA's employees.

The Petitioners advise that, since Mr. Gautreau's election to the Board of Utility Commissioners, the Board has not considered any matter involving Mr. Beauregard. The Petitioners further advise that Mr. Beauregard has not been called upon, as member of the Board of Directors of NEPPA, to consider any matter involving Mr. Gautreau. The Petitioners indicate that they intend to recuse themselves from their respective Boards on any matter involving the other Petitioner. Also, the Petitioners advise that they do not expect that they will be forced to recuse on a frequent or routine basis.

2. Analysis

Essentially at issue in this advisory opinion request is whether Mr. Gautreau may serve on the Board of Utility Commissioners, the entity responsible for reviewing the employment of the General Manager (Mr. Beauregard), where Mr. Gautreau's private employment is reviewed by Mr. Beauregard in his capacity as a member of the Board of Directors of NEPPA. Under the Code of Ethics, the Petitioners are prohibited from having any interest, financial or otherwise, direct or indirect, or engaging in any employment which is in substantial conflict with the proper discharge of their duties or employment in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a).(3) The Petitioners are also prohibited from accepting other employment which will impair their independence of judgment as to their duties or employment. See R.I. Gen. Laws § 36-14-5(b).

After considering the Petitioners' respective positions both with the Pascoag Fire District and NEPPA and the relevant provisions of the Code of Ethics, we are of the opinion that the present arrangement creates the potential for a conflict of interest. By serving on the Board of Utility Commissioners for the Pascoag Fire District, Mr. Gautreau is responsible for overseeing and reviewing the employment of Mr. Beauregard, an individual who serves as a member of the Board responsible for overseeing Mr. Gautreau's employment with NEPPA. Mr. Gautreau would be, in effect, his boss' boss; an arrangement not permitted under the Code. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-5(d). In fairly analogous past advisory opinion requests, we have not permitted such a duality of status. See A.O. 95-85 (concluding that a violation of the Code of Ethics would occur if a State Retirement System Field Investigator served on the State Retirement Board since the Petitioner's employment supervisor, the Executive Director of the State Retirement System, would be answerable or responsible to the Petitioner as a member of the State Retirement Board); A.O. 91-17 (refusing to permit a Teen Open Gym Supervisor for the Town of East Greenwich to simultaneously serve as a member of the East Greenwich Recreation Committee since the Petitioner's employment supervisor, the Recreation Director for the Town of East Greenwich, would be answerable or responsible to him as a member of the Recreation Committee.)

Although we have determined in previous advisory requests that the sort of duality of status seen here was prohibited by the Code of Ethics, we conclude that, after considering the Board of Utility Commissioner's procedures to review the General Manager's employment, Mr. Gautreau is not barred from serving on this Board provided that he recuses himself from any decision or discussion relating to Mr. Beauregard's employment and/or position with the Fire District and adheres to the other requirements specified in R.I. Gen. Laws § 36-14-6. In reaching this Conclusion, we relied on Mr. Beauregard's representations that a) Mr. Gautreau is not a member of a subcommittee of the Board of Utility Commissioners responsible for reviewing his terms of employment; and b) the Board of Utility Commissioners reviews the General Manager's position on an annual basis.

Footnotes

(1) The General Manager's position is a full-time salaried position.

(2) During a phone conversation, Mr. Beauregard advised that his employment is specifically reviewed by a three-member subcommittee of the Board of Utility Commissioners. Mr. Gautreau is not a member of this subcommittee.

(3) Substantial conflict is defined as a "direct monetary gain" or a "direct monetary loss" that accrues, by virtue of the public official's activity, to that individual, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a).

Keywords

Private Employment