Advisory Opinion No. 98-44

Re: George S. Farrell

A. QUESTION PRESENTED

The Petitioner, a Commissioner of the Fire Safety Code Board of Appeal and Review (Board of Appeal), a state appointed position, and a Lieutenant of the Providence Fire Department, a municipal employee position, requests an advisory opinion as to whether he may participate as a Commissioner of the Board of Appeal in appeals involving private and public property located within the City of Providence given that he is employed by the City, is a member of the Executive Board of the City of Providence Central Labor Council, and serves as the President of both the International Association of Firefighters (Local 799) and the Providence Firefighters Realty Corporation.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a Commissioner of the Fire Safety Code Board of Appeal and Review (Board of Appeal), a state appointed position, and a Lieutenant of the Providence Fire Department, a municipal employee position, from participating, as a Commissioner of the Board of Appeal, in appeals involving public and private property located within the City of Providence notwithstanding his employment relationship with the City, his membership on the Executive Board of the City of Providence, and his relationship with the International Association of Firefighters (Local 799) and the Providence Firefighters Realty Corporation (Realty Corporation), provided that the appeals do not involve buildings in which the Petitioner works or is likely to work or property owned by Local 799, the Realty Corporation, or members of Local 799. For appeals involving building in which the Petitioner works or is likely to work or property that is owned by Local 799, the Realty Corporation, or a member of Local 799, the Petitioner should exercise the notice and recusal provisions set forth in R.I. Gen. Laws § 36-14-6. This opinion is based on the fact that the Petitioner, as a City employee and the President of Local 799 and the Realty Corporation, has a business association with the organization and its members and an employment interest in the buildings in which he works or is likely to work that necessitates his recusal.

C. DISCUSSION

1. Facts

The Petitioner, a Lieutenant of the Providence Fire Department, serves as President of the International Association of Firefighters, Local 799 (Local 799), the labor organization representing firefighters on the Providence Fire Department, and a member of the Executive Board of the City of Providence Central Labor Council. The Petitioner also serves as the President of the Providence Firefighters Realty Corporation.

In addition to his employment with the City of Providence and his relationship with Local 799 and related entities, the Petitioner also serves as a Commissioner of the State of Rhode Island Fire Safety Code Board of Appeal and Review (Board of Appeal), a state agency that considers appeals of decisions of municipal boards of review regarding requests for exemption or exclusions from applicable fire safety codes and related laws. As a Commissioner, the Petitioner is responsible for participating in final decisions regarding appeals of exceptions and exclusions from the fire safety code and related laws.

2. Analysis

Under the Code of Ethics, the Petitioner, as a Commissioner of the Board of Appeal, may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). An official will have an interest in substantial conflict with his official duties if it is likely that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, 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).

Also, pursuant to R.I. Gen. Laws § 36-14-5(d), the Petitioner is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate, or any business by which he is employed or represent. Under R.I. Gen. Laws § 36-14-2(8), a "business associate" is defined as any individual or entity joined with a public official "to achieve a common financial objective." Finally Section 5(f) of the Code requires the Petitioner to recuse from voting or participating in consideration and disposition of a matter involving a business associate.

Here, the Petitioner seeks guidance as to whether he may participate, as a Commissioner, in appeals concerning private and public property located within the City of Providence given his employment interest with the City, his membership on the Executive Board of the Central Labor Council, and his relationships with Local 799, the union representing firefighters, and its Realty Corporation. To decide this issue, we must first determine whether the Petitioner's relationship with the City or Local 799 constitutes a business association, and, therefore, falls within the parameters of the Code.

Previously, this Commission has concluded that public officials are "business associates," as the term is defined in R.I. Gen. Laws § 36-14-2(8), of entities for which they serve either as members of the Board of Directors or in other leadership positions that permit them to affect the financial objectives of the organization. If an official has such a leadership position, the Commission has required the official to recuse him or herself if the interests of the organization would be affected by an action to be taken by his or her public agency. See 96-75 (advising three members of the General Assembly who also served as members of the Board of Directors of local hospitals to recuse themselves from hospital issues since they had a business association with the local hospitals); A.O. 95-59 (requiring a member of the Smithfield School Committee to recuse himself from a vote concerning a community organization if the official's association with the organization allowed him to affect the financial objectives of the organization).

Recently, we advised a member of the Rhode Island State Labor Relations Board, who also served as President and Business Manager of Public Service Employees' Local Union 1033 (Local 1033) of the Laborers' International Union of North America, AFL-CIO (Laborers' Union) and President of the Rhode Island Laborers' District Council (District Council), a regional umbrella organization of local unions affiliated with the Laborers' Union, that he could not participate in the Board's consideration of matters involving Local 1033 or local unions affiliated with the District Council while he served as President of the District Council given his relationship with Local 1033 and the District Council. See A.O. 97-91. In that opinion, we concluded that the Petitioner, as the President of the District Council, was in a position to affect the financial objectives of the other unions in the organization and, as such, his relationship with the District Council and the other local unions which comprise the organization was a business association, thereby necessitating recusal.

Here, the Petitioner, as President of Local 799 and the Realty Corporation, is also in a position to affect the financial objectives of the union and the Realty Corporation and, accordingly, his relationship with both entities constitutes a business association that triggers the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a), 5(d), and 5(f). Therefore, the Petitioner should recuse himself whenever a matter affecting property owned by Local 799 or the Realty Corporation is before the Board of Appeal. Also, given his association with Local 799, the Petitioner should recuse himself from an appeal involving property owned by members of Local 799, his business associates. See R.I. Gen. Laws §§36-14-5(a) and 5(f). The Petitioner may, however, participate in appeals involving private property not owned by Local 799, the Realty Corporation, or members of Local 799.

As to property owned by the City of Providence, the Petitioner should recuse himself from an appeal if it involves a building where the Petitioner works or is likely to work because of his employment interest in the building. This decision is consistent with a recent advisory opinion in which we advised a Providence Fire Department plan reviewer/fire inspector that he could not review plans or produce a fire code enforcement report concerning the building where he worked and which was owned by the City. We concluded that the Petitioner's position as an inspector and the potential that his actions might affect his employment interests, would place him in an entirely untenable position and one which, under the Code of Ethics, constituted a substantial conflict of interest. See A.O. 97-92. Here, the Petitioner, who similarly would be in a position to affect the interests of the City in an appeal of a decision denying an exemption from the fire code, also would be placed in a position that would constitute a substantial conflict of interest thereby necessitating recusal.

Code Citations:

36-14-2(8)

36-14-5(a)

36-14-5(f)

36-14-6

36-14-7(a)

Related Advisory Opinions:

97-92

97-91

96-75

95-59

Keywords:

Business associate

Business interest

Regulatory decisions