Advisory Opinion No. 96-82

Re: Thomas P. Heaney, Sr.

A. QUESTION PRESENTED

The Petitioner, an elected member of the Board of Trustees of the North Cumberland Fire District, requests an advisory opinion as to whether a conflict exists given his dual status as a paid callman for the North Cumberland Fire Department.

B. SUMMARY

The Commission concludes that a violation of the Code may occur if the Petitioner, an elected municipal official serves as both a paid callman for the North Cumberland Fire District and serves on the Fire District Board of Trustees. This decision is based on the Commission's finding that the Petitioner's employment supervisor, the Fire Chief, would be answerable or responsible to the Petitioner as a member of the Board of Trustees. It is the Commission's opinion that this relationship may impair the Petitioner's independence of judgment and therefore should be avoided. R.I. Gen. Laws § 36-14-5(b). Given this conclusion, we do not address when the Petitioner should recuse himself as a Board of Trustees member. Additionally, we further caution the Petitioner that under Commission Regulation 5006, that if the Board has any involvement in the appointment or reappointment of callmen, that he must wait one year from the termination of his term with the Board of Trustees to accept any appointment or employment from that Board.

C. DISCUSSION

1. Facts

The Petitioner has been a member of the North Cumberland Fire District Board of Trustees since 1989. The Board of Trustees is comprised of eight elected members. The by-laws for the District state that each member of the Board must be a qualified taxpayer, live in the Fire District, and not be a paid member of the North Cumberland Fire Department. Additionally, the Petitioner participates in committees which consider the need for new equipment, tax assessment terms for collection of back taxes, determining tax rates to support the budget, and currently a committee to evaluate possibilities of a merger of four fire districts within the Town of Cumberland.

The Petitioner represents that he is not a paid member of the Fire Department, but is a paid callman, responding to calls and then receiving payment for each call. The Petitioner has been in this position since 1989. Additionally, the Petitioner represents that callmen are not considered part of the bargaining unit representing the permanent paid firefighters of the Department. The Petitioner represents that the Chief of the Fire Department appoints the callmen and that reappointments are not necessary if the callman has responded a requisite number of times in the previous year. The Fire Chief is appointed by the Board of Trustees. As a callman, the Petitioner responds to the fire station when extra manpower is requested by the Department because all permanent on-duty men have been called to a fire rescue scene. The callmen are available for any other fire/rescue calls within the district to provide immediate response requested by the community residents in need of assistance.

The Petitioner requests an advisory opinion as to whether a conflict exists to serve in both capacities.

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 employment, transaction which is in substantial conflict with the proper discharge of his duties in the public interest. A substantial conflict of interest occurs if the Petitioner has reason to believe or expect that he or any family member or business associate, or any business by which he 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 his independence of judgment as to his official duties or induce his to disclose confidential information acquired by his in the course of and by reason of his official duties. R.I. Gen. Laws § 36-14-5(b). Commission Regulation 5006 provides that no elected official may accept any appointment by the body of which he is a member to any position which carries with it any financial benefit or remuneration until the expiration of one (1) year after termination of his membership on such body.

The facts in this matters are similar to that in A.O. 95-85. In that opinion, we advised the State Retirement System Field Investigator who was seeking a position on the State Retirement Board that since the petitioner's employment supervisor, the Executive Director of the State Retirement System, would be answerable or responsible to the Petitioner it could result in a violation of R.I. Gen. Laws § 36-14-5(b) and further advised the petitioner to refrain from running for one of the vacant retirement board seats. Similarly, the Commission has found that an East Greenwich Town Recreation Committee member could not accept employment as a Teen Open Gym Supervisor from the Town Manager given that his employment supervisor would be the Recreation Director who may be answerable or responsible to him as a member of the Recreation Committee. The Commission advised the petitioner to resign his position on the Recreation Committee if he intends to continue his employment through the Recreation Department. A.O. 91-17.

Based on the provisions of the Code and past advisory opinions, we conclude that a violation of the Code may occur if the Petitioner serves as both a paid callman for the North Cumberland Fire District and serves on the North Cumberland Fire District Board of Trustees. This decision is based on the Commission's finding that the Petitioner's employment supervisor, the Fire Chief, would be answerable or responsible to the Petitioner as a member of the Board of Trustees. It is the Commission's opinion that this relationship may impair the Petitioner's independence of judgment and therefore should be avoided. R.I. Gen. Laws § 36-14-5(b). Given this conclusion, we do not address when the Petitioner should recuse himself as a Board of Trustees member. Additionally, we further caution the Petitioner that under Commission Regulation 5006, that if the Board has any involvement in the appointment or reappointment of callmen, that he must wait one year from the termination of his term with the Board of Trustees to accept any appointment or employment from that Board.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-7(a)

Related Advisory Opinions:

95-85

91-17

Keywords:

dual public roles