Advisory Opinion No. 98-99

Re: Steven A. Moretti, Esq.

A. QUESTION PRESENTED

The Petitioner, a Narragansett Bay Commission member, a state appointed position, requests an advisory opinion as to whether he may accept employment as legal counsel for the Rhode Island Resource Recovery Corporation (RIRRC) regarding a biosolids processing facility project given the possibility that the Narragansett Bay Commission may join the RIRRC in the project on either a joint venture or contractual basis.

A. SUMMARY

It is the opinion of the Rhode Ethics Commission that the Petitioner, a Narragansett Bay Commission member, a state appointed position, may accept employment as legal counsel for the Rhode Island Resource Recovery Corporation (RIRRC) regarding a biosolids processing facility project provided that any contract for his professional services is awarded through a process of public notice and disclosure and the Narragansett Bay Commission (NBC) does not join the RIRRC in the project on a joint venture basis. If the NBC joins the project on a contractual basis, the Code of Ethics requires the Petitioner to recuse from participation and vote whenever the interests of the RIRRC come before him as a member of the NBC. However, the nature of a joint venture relationship may necessitate the Petitioner’s recusal on a frequent basis, thus triggering the prohibitions of Regulation 36-14-5003. Additionally, Section 5(e) of the Code would prohibit the Petitioner from appearing before the NBC regarding the project. Due to the speculative nature of the potential relationship between the entities, the Petitioner is advised to seek a further advisory opinion once the nature of the NBC’s involvement in the project is established.

1. DISCUSSION

1. Facts

The Petitioner was appointed to the Narragansett Bay Commission (NBC) in September of 1995. Although his term expired on April 1, 1997, he continues to serve as an active NBC member because a successor has not been appointed. The Petitioner advises that he has been approved as legal counsel for the Rhode Island Resource Recovery Corporation (RIRRC) on a contractual basis. As part of his employment with the RIRRC, he will draft and review a Request for Proposal in regard to the design, construction, operation and financing of a biosolids processing facility at the RIRRC in Johnston.

Presently, there exists the possibility that the NBC may join the RIRRC in this project, either in a joint venture or on a contractual basis with the NBC providing materials to be processed at the proposed facility. The Petitioner indicates that the project is in its inception stages and he has no knowledge of how any relationship between the two entities would be structured. He seeks guidance from the Ethics Commission as to whether he may serve as legal counsel to the RIRRC on this project while continuing to serve as a NBC member.

2. Analysis

Pursuant to the Code of Ethics, 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 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 his official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a). The Code provides that the Petitioner shall not accept other employment that will either impair his independence of judgment as to his official duties or induce him to disclose confidential information acquired by him in the course of and by reason of his official duties. R.I. Gen. Laws § 36-14-5(b). Additionally, a public official may not enter into a contract for professional services with any state or municipal agency unless the contract is awarded through a process of public notice and disclosure of financial details. See R.I. Gen Laws § 36-14-5(h). Finally, R.I. Gen. Laws § 36-14-5(e) provides that a public official may not appear before his own agency. Section 5(e)(4) extends said prohibition for a period of one year after the official severs his position with the agency.

The Commission concludes that the Code of Ethics does not prohibit the Petitioner from accepting contractual employment with the RIRRC. However, based upon his continuing status as a member of the Narragansett Bay Commission, any contract for his professional services must be awarded through a process of public notice and disclosure of financial details pursuant to Section 5(h) of the Code. In the event the NBC joins the RIRRC in the project, when matters involving or affecting the RIRRC come before the NBC, an intersection of interests occurs between the Petitioner’s responsibilities and personal interests as an employee of the RIRRC and the duty he owes to the NBC. Pursuant to Commission Regulation 36-14-6001, a public official has reason to believe or expect that a conflict of interest exists when it is “reasonably foreseeable.” Accordingly, the Petitioner should recuse from participation as a member of the NBC in all matters where the interests of the RIRRC are implicated.

If the NBC joins the project on a contractual basis, the Petitioner should recuse from participation whenever the interests of the RIRRC come before him as a NBC member. Notice of recusal should be filed with both the Narragansett Bay Commission and the Ethics Commission. R.I. Gen. Laws § 36-14-6. Further, the Petitioner is reminded that he may not represent the RIRRC or its interests before the NBC for a period of one year after he officially severs his position with the NBC. R.I. Gen. Laws § 36-14-5(e).

In the event that a joint venture is established between the entities, recusal may not be an adequate option for the Petitioner. The nature of such a joint venture might necessitate the Petitioner’s recusal on a frequent basis, thus triggering the prohibitions of Regulation 36-14-5003. Where recusal occurs with such frequency as to give the appearance of impropriety, the Petitioner may be deemed to have violated provisions of the Code. Due to the speculative nature of the potential relationship between the entities, the Petitioner is advised to seek a further advisory opinion if and when the NBC becomes involved in the project and the nature of that involvement is established.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(c)

36-14-5(e)(4)

36-14-5(h)

36-14-7(a)

36-14-5003

36-14-6001

Related Advisory Opinions:

98-87

98-37

95-103

95-39

94-48

Keywords:

Dual public roles

Financial interest