Advisory Opinion No. 96-107

Re: Sara Whitright

A. QUESTION PRESENTED

The petitioner, Narragansett Town Councilor, a municipal elected position, requests an advisory opinion as to whether she may accept private employment given that the employer is a member of the Narragansett Planning Board and that the Board is appointed by and its decisions may be reviewed by the Town Council.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the petitioner, Narragansett Town Councilor, a municipal elected position, may accept private employment with a member of the Narragansett Planning Board. However, the petitioner should recuse herself from participation in the appointment or reappointment of her (prospective) employer to the Planning Board or other municipal position given that her independence of judgment may be impaired with respect to such action. Additionally, the petitioner as Town Councilor may participate in the review of Planning Board decisions given that such reviews are infrequent and that neither the petitioner's employer nor his interests appear or are before her in such matters. The Commission encourages disclosure of her relationship with her employer to the parties in such a matter.

C. DISCUSSION

1. Facts

The petitioner is an elected member of the Narragansett Town Council. She is considering a private employment opportunity with a local physician who is an appointed member of the Narragansett Planning Board. Appointments to the Planning Board are by the Town Council. The Doctor's reappointment will come before the Town Council in November. The petitioner requests an advisory opinion as to whether she may accept such employment.

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 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).

In this matter, the petitioner may become employed by a member of the Planning Board, whom she, as a member of the Town Council, has authority to appoint. In previous advisory opinions, presenting situation where parties were in or considering an employment relationship, the Commission has advised that a public official should recuse from participation since their independence of judgment would be impaired. See A.O. 95-7 (concluding that a Town Councilor may not participate or vote on matters concerning her private employer) However, the fact that Planning Board decisions or recommendations may be reviewed by the Town Council does not raise the same issues since the petitioner's employer is not appearing before her nor does the matter at issue directly affect the prospective employer. See A.O. 96-16 (concluding member of Sewer Board of Review may serve in that position where her spouse was employed by the Sewer Authority, given that the Board of Review had limited appellate jurisdiction over the Authority, as that involvement did not in of itself create an interest in substantial conflict with the Board member's duties), and A.O. 96-45 (concluding that a conflict did not exist simply because of a family relationship between an appointed member of the Sewer Commission and a Town Councilor; additionally, the fact that the Council accepted or rejected the Sewer Commission's recommendations without additional facts did not present an inherent conflict for the Councilor).

It is the opinion of the Rhode Island Ethics Commission that the petitioner, Narragansett Town Councilor, a municipal elected position, may accept private employment with a member of the Narragansett Planning Board. However, the petitioner should recuse herself from participation in the appointment or reappointment of her (prospective) employer for the Planning Board or other municipal position given that her independence of judgment may be impaired with respect to such action. Additionally, the petitioner as Town Councilor may participate in the review of Planning Board decisions given that such reviews are infrequent and that neither the petitioner's employer nor his interests appear or are before her in such matters. The Commission encourages disclosure of her relationship with her employer to the parties in such a matter, however.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-7(a)

Related Advisory Opinions:

96-45

96-16

95-7

Keywords:

appointing authority

private employment