Advisory Opinion No. 96-77

Re: Frances H. Walker-Briscoe

A. QUESTION PRESENTED

The Petitioner, a recently elected Newport Housing Authority Board of Commissioners Member, requests an advisory opinion as to whether she may serve on the Board given that she is also an employee of the Newport Residents Council, Inc., a private non-profit corporation.

B. SUMMARY

We conclude that the Code of Ethics does not prohibit the Petitioner from simultaneously serving as an elected Newport Housing Authority Board of Commissioners Member and as an employee of the Newport Residents Council Inc. However, given her relationship with Newport Residents Council Inc. and as her employer, the Petitioner, as a Newport Housing Authority Board of Commissioners Member, must recuse herself from participation in any discussion or voting in matters concerning Newport Residents Council Inc. based on a substantial conflict of interest and possible violation of Section 5 (b) of the Code. If the Petitioner recuses herself in such a matter, a Section 6 notice must be filed with the Board of Commissioners and the Ethics Commission.

C. DISCUSSION

1. Facts

(Although this advisory opinion request may raise questions as to two other individuals, the Commission declines to consider those matters here given that the Newport Residents Council Inc. is not covered by the Code of Ethics and that Ms. Walker-Briscoe does not have permission from the individuals to seek an advisory opinion in their behalf. This is consistent with R.I. Gen. Laws § 36-14-11 and Commission Regulation 1024.)

The Petitioner has been elected to the Newport Housing Authority Board of Commissioners. The Board of Commissioners is the governing Board for the Newport Housing Authority.

The Petitioner is also employed by Newport Residents Council, Inc. The Council is a private non-profit corporation which has a contract with the Newport Housing Authority. The Council has a Board of Directors that is responsible for the direction and policy for the organization under HUD guidelines and includes all aspects of the operations of the Council including job sites assigned to the Council by other organizations and agreements.

2. Analysis

The Code of Ethics provides that the Petitioner shall not have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, or transaction which is in substantial conflict with the proper discharge of her duties in the public interest. A substantial conflict of interest occurs if the Petitioner has reason to believe or expect that she or any family member or business associate or any business by which she is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, the Code provides that the Petitioner shall not accept other employment which will either impair her independence of judgment as to her official duties or induce her to disclose confidential information acquired by her in the course of and by reason of her official duties. R.I. Gen. Laws § 36-14-5(b).

The Commission has previously required recusal by public officials when their non-profit organization appeared before the public official's agency. See A.O. 89-103, A.O. 92-31, A.O. 91-07. See also A.O. 95-92 (American with Disabilities Act Coordinator employed by Department of Administration who is also on the Board of Directors of the PARI Independent Living Center, a member of a American with Disabilities Act Coalition, and mediator with the Governor's Commission on the Handicapped must recuse himself from participating in decisions when they appear before him at the Department of Administration.) And A.O. 91-86 (Director of Economic Development for State of Rhode Island must recuse himself from participating in matters relating to donating land to a college where the Director is also a trustee of that college); A.O. 81-33 (Bristol Housing Authority Member should recuse himself when matters concerning the Senior Citizens Center appear before him given that he is also a Member of the Board of Directors at the Center); A.O. 92-67 (Pawtuxet River Authority Board of Directors Member could not participate in activities concerning Save the Rivers, a private, non-profit organization, given that he is also a Member of the Board of Directors of Save the Rivers).

Additionally, the Commission has found that public officials must exercise recusal when their private employment interests appear before them. See A.O. 93-37 (School Committee Member cannot simultaneously serve as member and appear in connection with matters concerning his employer which may be heard before the Town Council); A.O. 93-02 (Planning Board Member could not participate in a matter concerning his employer appears before the Board and the action could benefit his employer); A.O. 92-17 (Chief of Drug Control Division of Department of Health who is also employed as pharmacist at CVS could not participate in CVS matters at the Department of Health); A.O. 83-45 (Chairman of Tiverton Housing Authority could be in violation of the Code if his employer transacts business with the Authority).

Based on the Petitioner's representations, provisions of the Code, and previous advisory opinions, we conclude that the Code of Ethics does not prohibit the Petitioner from simultaneously serving as Newport Housing Authority Board of Commissioners Member and as an employee of the Newport Residents Council Inc. However, given her relationship with Newport Residents Council Inc. and as her employer, the Petitioner, as a Newport Housing Authority Board of Commissioners Member, must recuse herself from participation in any discussion or voting in matters concerning Newport Residents Council Inc. based on a substantial conflict of interest and possible violation of Section 5 (b) of the Code. If the Petitioner recuses herself in such a matter, a Section 6 notice must be filed with the Board of Commissioners and the Ethics Commission.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-6

36-14-7(a)

36-14-11

Regulation 1024

Related Advisory Opinions:

95-92

93-37

93-02

92-67

92-17

92-31

91-86

91-07

89-103

83-45

81-33

Keywords:

non-profit boards

private employment