Advisory Opinion No. 98-116

Re: Mario Aceto

QUESTION PRESENTED

The Petitioner, a City of Cranston Zoning Board of Review member, a municipal appointed position, requests an advisory opinion as to whether he may seek elective office to the Cranston City Council while serving as a member of the Zoning Board and, if elected, whether he may retain his position on the Zoning Board given that he is appointed by the City Council.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a Cranston Zoning Board member, a municipal appointed position, from seeking elective office for the City Council while serving as a Zoning Board member. The Petitioner indicates in his letter that, if elected, he likely would resign from his position on the Zoning Board. If elected to the City Council, and if he chooses to continue to serve as a member of the Zoning Board, the Petitioner may not participate in matters before one body that may impact the other. As a practical matter, this may make simultaneous service impossible. Also, the Petitioner may not be reappointed to the Zoning Board if he is elected to the City Council, since the City Council participates in the appointment of Zoning Board members.

Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to simultaneous service as a Zoning Board member and a City Councilor. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out an official's duty in the public interest. The Petitioner is advised, for instance, that he would not be able to participate as a City Council member in any matters affecting the Zoning Board while serving as a member of that Board. In sum, while simultaneous service in either of the two positions is not barred by the Code of Ethics, the relevant statute and regulations would require that the Petitioner be particularly vigilant as to the matters in which he participated. We caution, however, that if elected to office, the Petitioner may find that he is faced with numerous potential conflicts which require his recusal from either Zoning Board or City Council matters on a regular basis, thereby triggering Regulation 36-14-5003's limitation of recusals. If such a situation develops, the Petitioner should seek another advisory opinion as to whether he may simultaneously serve as a Zoning Board member and City Councilor.

The Petitioner is further advised that, if elected to the City Council, under the provisions of R.I. Gen. Laws § 36-14-5(e)(1) he may not accept reappointment to the Zoning Board until one year after his term with the City Council has expired since the City Council appoints members of the Zoning Board.

Finally, the Petitioner is advised that this opinion solely addresses whether the Code of Ethics prohibits him, as an appointed municipal official, from seeking or holding office as a City Councilor. This opinion does not address whether the Charter for the City of Cranston or any other statutes, rulings or policies, specifically from the State Board of Elections or the Attorney General's Office, prohibits such simultaneous service.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-5(e)

Related Advisory Opinions:

98-104

98-37

97-127

97-23

95-62

95-38

93-13

90-11

Keywords:

Candidate

Dual public roles