Advisory Opinion No. 98-45

Re: Thomas F. Ahern

A. QUESTIONS PRESENTED

The Petitioner, the Administrator of the Rhode Island Division of Public Utilities and Carriers (PUC), a state appointed position, requests an advisory opinion as to whether he may participate in matters that relate to the telecommunications industry or Bell Atlantic (formerly Nynex) given that he receives a retirement pension from Nynex and that his wife will be employed in a non-managerial position with Nynex until she retires on July 31, 1998.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, the Administrator of the Rhode Island Division of Public Utilities and Carriers (PUC), a state appointed position, from participating in matters that concern the telecommunications industry or Bell Atlantic (formerly Nynex) notwithstanding the fact that he receives a pension from Nynex and his wife will be employed by Nynex in a non-managerial position until July 31, 1998, the date of her anticipated retirement. This decision is based on the fact that the Petitioner, as a retired employee receiving a fixed pension without any other ownership interest in Nynex, does not have an interest in Bell Atlantic or the telecommunications industry that would trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) or 5(d). Also, the Petitioner's wife's interest in Nynex would not prohibit his participation since any residual benefit or detriment that could flow to his wife as a result of his participation is too remote to implicate any provisions in the Code of Ethics, especially given her impending retirement.

C. DISCUSSION

1. Facts

The Petitioner is the Administrator of the Division of Public Utilities and Carriers (PUC). Before he served in this position, the Petitioner served as the Director of Public Affairs at Nynex (now Bell Atlantic), an entity regulated by PUC.

On April 15, 1998, the Commission issued Joseph Larisa, the Executive Counsel to the Governor, an advisory opinion on behalf of the Petitioner. In that opinion, the Commission opined that the appointment of Mr. Ahern as Administrator to PUC would not violate the Code of Ethics. See A.O. 97-54 (attached). In that opinion, the Commission also advised that, since the Petitioner planned to retain certain financial connections (i.e., pension interest, stock ownership, and discounted phone service) with Nynex and because his wife would continue to be employed by Nynex, he should seek additional advice and guidance about future issues relating to the telecommunications industry or Nynex.

After receiving the advisory opinion, the Petitioner sold his stock in Nynex and waived his right as a retired employee to receive discounted local phone service. This year he will receive a one-time payment of stock from Bell Atlantic worth approximately $500 because of work performed for the company in early 1997. That stock, as well as any stock or options that are available to his wife upon her retirement also, as represented by the Petitioner, will be sold. Also, the Petitioner's wife, although still employed by Nynex in a non-managerial position, plans to retire on July 31, 1998.

Recently, the General Assembly accepted a Bill for consideration, House Bill 98-H-7879, that would require all public utilities that own and maintain utility poles (i.e. telephone and electric companies) to remove abandoned utility poles within three months of the date of installation of a new pole. The Petitioner states that he believes that this legislation, if enacted, would result in an undue financial hardship to ratepayers, and he wishes to address the General Assembly in his capacity as Administrator of PUC.

The Petitioner seeks guidance as to whether he may participate in matters concerning this legislation or any other matters directly or indirectly involving Bell Atlantic given that he has retired from Nynex, sold his stock interest in the corporation, and his wife plans to retire on July 31, 1998.

2. Analysis

Under the Code of Ethics, a public official 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 has 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, or his employer. See R.I. Gen. Laws § 36-14-7(a). Also, a public official may not use his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, a family member, or an employer. See R.I. Gen. Laws § 36-14-5(d).

Here, the issue before the Commission is whether the Petitioner has an interest in Nynex, either individually or through his wife, that would prohibit him from participating in matters concerning the legislation under consideration relating to the removal of utility poles or, in general, other matters that affect or concern Bell Atlantic, the successor to Nynex. It is our opinion, after considering the Petitioner's and his wife's relationships with Nynex-Bell Atlantic and past advisory opinions, that neither the Petitioner nor his wife's interest in Nynex would preclude him from participating in proceedings as the Administrator of PUC in the pending legislation or in other future matters affecting Bell Atlantic or the telecommunications industry. As to his personal interest in Nynex-Bell Atlantic, the Petitioner advises that, although he receives a pension, he has sold any and all stock interests and has waived his right to receive discounted phone service as a retired employee. This year, based upon work performed for the company in early 1997, the Petitioner will receive a one time payment of approximately $500 in Bell Atlantic stock, which he also will sell. Based on the actions taken (and to be taken) by the Petitioner, he does not have an employment or ownership interest in Nynex/Bell Atlantic that would trigger the prohibitions set forth in the Code. Also, although as a retired employee he receives a fixed pension, this interest is too remote to necessitate recusal on matters affecting Bell Atlantic or the telecommunications industry. Cf. A.O. 95-55. There is no evidence that any actions that the Petitioner may take as Administrator of PUC could affect his pension interest in Nynex.

We also conclude that the Petitioner's wife's interest in Nynex-Bell Atlantic does not preclude him from participating in the pending legislation or in future matters affecting Bell Atlantic or the telecommunications industry for the following reasons. First, there is no evidence that the pending legislation would impact his wife's employment interest. The Petitioner's wife plans to retire in less than four months on July 31, 1998. It is highly unlikely that the pending legislation could or would affect her employment status or her retirement plans. See A.O. 95-12 (advising the Director of the Department of Business Regulation that he could participate in the approval or disapproval of rate filings made on behalf of insurance and health maintenance organizations doing business in Rhode Island while his spouse was engaged as an officer and principal in the private practice of anesthesiology and had contractual relationships with two hospitals located within the state since any potential benefit or detriment received by his spouse would not represent an interest in conflict with the discharge of his duties in the public interest as defined in R.I. Gen. Laws § 36-14-7(a)); A.O. 96-105 (concluding that the Petitioner, the Chief of the Office of Systems Planning in the Division of Planning, did not have any impermissible conflicts under the Code by virtue of the fact that her position included staff work for the State Planning Council and that her spouse was employed by a company with business before the Department of Transportation which carries out programs established by the State Planning Council given the lack of financial nexus or significant relationship between the spouse's employment activities and matters before the Petitioner). Also, the Code of Ethics does not generally preclude a public official from participating in matters affecting a spouse's employer unless there is direct evidence that the matter under consideration will affect the family member which, again, is not the case here. See R.I. Gen. Laws § 36-14-7(a).

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

97-54

96-105

96-7

95-12

95-55

Keywords:

Family: Private employer/ment

Financial interest

Private employment