Advisory Opinion No. 98-111 Re: Robert S. Powers, Esq. A. QUESTIONS PRESENTED The Petitioner, the Deputy Chief Legal Counsel with the Rhode Island Department of Business Regulation, requests an advisory opinion on behalf of members of the Rhode Island Real Estate Commission (Real Estate Commission), state appointed officials, as to whether members of the Real Estate Commission which is responsible for approving and certifying continuing education courses, may teach such courses for real estate agents if they recuse themselves from any and all matters concerning the regulation of continuing education courses. B. SUMMARY It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit members of the Rhode Island Real Estate Commission from teaching continuing education classes for real estate agents provided that they recuse themselves from any and all matters concerning the regulation of continuing education classes. However, if a member elects to teach in the continuing education program, under the provisions of R.I. Gen. Laws § 36-14-5(e)(1), he or she may not submit an application to obtain continuing education accreditation from the Commission or appear before the Commission to support an application for course accreditation. To the extent that this opinion is inconsistent with Advisory Opinion No. 98-31, issued to Joseph Accetta (the Chairperson of the Real Estate Commission) that opinion is reversed. C. DISCUSSION 1. Facts The Real Estate Commission is an advisory Commission to the Department of Business Regulation (DBR) and operates in accordance with the terms and provisions of R.I. Gen. Laws § 5-20.5-12. As part of its responsibilities, the Real Estate Commission and an educational subcommittee thereof reviews and approves courses for accreditation in the continuing education program for real estate agents. DBR establishes the overall requirements for the continuing education program, such as the hourly requirements and the categories of classes. On March 5, 1998, the Rhode Island Ethics Commission issued an advisory opinion to Joseph Accetta, the former Chairperson of the Real Estate Commission. Based on Mr. Accetta's representations and the facts available at that time, we advised him that the Code of Ethics prohibited him from teaching a three-hour continuing education seminar for real estate agents approved by the Real Estate Commission. See Exhibit A (A.O. 98-31). In that opinion we recognized that, since the Real Estate Commission is responsible for regulating continuing education classes for Real Estate Agents, Mr. Accetta's teaching responsibilities "would create an interest in substantial conflict and would constitute employment that impaired him independence of judgment with respect to his public responsibilities." (The Petitioner represents that, after Mr. Accetta received his advisory opinion, he resigned from the Commission claiming that he wanted to continue teaching education courses.) The Petitioner, the legal counsel to the Real Estate Commission, after reviewing the opinion issued to Mr. Accetta, inquires as to whether members of the Real Estate Commission, given their limited role in the continuing education program, may teach continuing education classes for Real Estate Agents if they recuse themselves from the educational subcommittee's and Commission's review of matters concerning the continuing education program. 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 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 or a business associate. See R.I. Gen. Laws § 36-14-7(a). Under R.I. Gen. Laws § 36-14-5(b), the Petitioner may not accept outside employment that will impair his independence of judgment. 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 or a business associate. See R.I. Gen. Laws § 36-14-5(d). Certain provisions of the Code of Ethics also prohibit appearances before the public official's board by the official, business associates and employers. Specifically, section 5(e)(1) of the Code prohibits a public official from representing himself before a state or municipal agency of which he is a member. See R.I. Gen. Laws § 36-14-5(e)(1). Also, section 5(f) of the Code prohibits a business associate of a public official from representing himself before the official's agency unless (a) the business associate notifies the official's agency of the nature of their relationship; and b) the official recuses himself from voting on or otherwise participating in the agency's consideration of the matter at issue. R.I. Gen. Laws § 36-14-5(f). In Rhode Island, pursuant to rules and regulations of the Rhode Island Department of Business Regulation (DBR), all licensed real estate agents are required to fulfill twelve hours of continuing education credits in classes approved by the Real Estate Commission. The Petitioner asks whether members of the Real Estate Commission may teach continuing education courses for Real Estate Agents if they recuse themselves from discussions and votes concerning continuing education program. Previously, we advised members of the Building Code Standards Committee, who are statutorily charged with the task of developing and supervising a continuing education program, that they should not teach courses in the program since such dual activity (regulating the program and teaching in the program) created an inherent conflict of interest. See A.O. 92-49. In another opinion, we advised a member of the Board of Examiners of Electricians that he should not teach continuing education classes mandated for electricians and journeymen since his Board was responsible for establishing and maintaining the continuing education program. See A.O. 96-47. In that opinion, the Commission found that recusal from matters relating to continuing education was not sufficient to overcome the substantial conflict with his public duties. As such, he could not simultaneously teach classes for compensation and serve on the Board of Examiners of Electricians. Compare with A.O. 97-108 (advising the State Building Commissioner that the Code of Ethics did not prohibit him from teaching a course that was not part of the continuing education program under the jurisdiction of the Building Code Standards Committee); and A.O. 96-64 (concluding that the Code of Ethics did not prohibit the Petitioner, a municipal electrical inspector and a member of the Board of Examiners of Telecommunication System Contractors and Installers, from teaching continuing education classes for electricians where his Board neither regulates nor administers the mandatory education classes for electricians and journeymen). Here, after considering prior opinions and reviewing in detail the Real Estate Commission's responsibilities with respect to the continuing education program, we conclude that the Code of Ethics does not bar members of the Commission from teaching courses in the continuing education program provided that they recuse themselves from all matters that affect and concern the continuing education program. We recognize that the situation raised here is distinguishable from that which faced members of the Board of Examiners of Electricians and the Building Code Standards Committee. In those cases the Board and the Standards Committee were statutorily charged with establishing and overseeing the continuing education program. Here, under DBR's regulations, the Real Estate Commission's role in the continuing education program is limited to reviewing and approving courses to be accredited by the program; DBR established the program and specifies the requirements for the program, such as how many and what type of courses a real estate agent must complete on a yearly basis. Given the members limited regulatory role in the continuing education program, the conflict that members have who wish to teach in the program does not rise to the same level as faced by members of the Board of Examiners of Electricians and the Building Code Standards Committee. To the extent that this opinion is inconsistent with a previous advisory opinion (A.O. 98-31) issued to a member of the Real Estate Commission, Joseph Accetta, that opinion is overruled. Although we conclude that members of the Real Estate Commission may teach in the continuing education program, we advise those members that plan to teach in this program that they must recuse not only from matters affecting their proposed courses or employers but also from all other proposed program/courses given that they are potential competitors of course providers. See A.O. 96-70 (requiring a member of the Newport City Council and the Board of License Commissioners who owns a restaurant holding a liquor license to recuse himself from zoning or licensing matters that concern competitors); A.O. 96-24 (recognizing that an Alternate Member of the Newport Zoning Board of Review who is part owner and operator of a hotel and landlord to a restaurant and dance club, may not participate in matters affecting other hotels or matters affecting restaurant, dance clubs, or bed and breakfasts that are located within 500 feet of the petitioner's businesses). Also, we advise the members of the Real Estate Commission that section 5(e)(1) of the Code prohibits them from submitting an application to the Commission to obtain continuing education accreditation for a course or appearing before the Commission in behalf of that application. In practical terms this means that a member of the Real Estate Commission may be hired by an educational institution or facility to teach a continuing education course that previously had been approved by the Commission. A member of the Commission may not, however, submit an application to the Commission for accreditation for a course, or have an application submitted on his or her behalf. See A.O. 96-85 (advising a former elected member of the Middletown School Committee that she could not apply for a position or interview with the School Committee or a subcommittee thereof since it constituted representation before her Board). Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-5(e) 36-14-5(f) 36-14-7(a) Related Advisory Opinions: 98-31 97-108 97-107 96-85 96-70 96-47 96-24 92-49 Keywords: Financial interest Private employment Recusal