Advisory Opinion No. 98-143

Re: Town of Smithfield – John Serapiglia

QUESTION PRESENTED

The Smithfield Town Solicitor requests an advisory opinion on behalf of the Petitioner, a member of the Smithfield Conservation and Soil Erosion Commissions, municipal appointed positions, as to whether he should recuse from consideration of a mall construction proposal given that his son-in-law’s company, by whom he also is employed, has been retained as environmental engineers for the project.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Smithfield Conservation and Soil Erosion Commissions, municipal appointed positions, may participate and/or vote on consideration of a mall construction proposal despite the fact that his son-in-law’s company, by whom he also is employed, has been retained as environmental engineers for the project. This conclusion is based upon the Petitioner’s representations that 1) the company will not appear before either municipal body on which he serves, and 2) in the event that the company’s findings are referenced before the Conservation Commission by another firm, that public body has no discretionary authority over the proposal.

The Petitioner advises that a mall construction proposal will come before the Smithfield Conservation and Soil Erosion Commissions. His son-in-law’s company, Hoffman Engineering, Inc., by whom he also is employed, serves as environmental engineers for the project. Hoffman’s involvement is limited to a site contamination inspection. The Petitioner indicates that he will have no involvement with the project. Two other engineering firms have been retained for the project and will submit reports to the Conservation and Soil Erosion Commissions. In the event that contamination is present, Hoffman’s findings may be referenced before the Conservation Commission by another firm. The Petitioner represents that the Conservation Commission has no discretionary authority over the proposal given that the Commission will only ascertain that certain guidelines have been met.

Under the Code of Ethics, the Petitioner 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 and employment in the public interest. See R.I. Gen. Laws §§ 36-14-5(a) and 7(a). He also may not accept outside employment that will impair his independence of judgment as to his official duties or employment. See R.I. Gen. Laws § 36-14-5(b). Finally, he may not use his public employment or confidential information received through his public employment to obtain financial gain for himself, for a family member or business associate, or for any business that he represents. See R.I. Gen. Laws § 36-14-5(d).

Here, Hoffman will not be appearing before either municipal body on which the Petitioner serves. Additionally, the Petitioner will not have an opportunity to exercise any discretion on matters that could impact Hoffman. As such, there is no reason to believe or expect that the company, or the Petitioner as its employee, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Based on recent decisions of the Supreme Court (see Town of Lincoln v. Lincoln Lodge No. 22, 660 A. 2d 710 (R.I. 1995) and of the Superior Court (see, e.g., Richard A. Licht v. Rhode Island Ethics Commission, Superior Court, slip. op. March 9, 1998, Rodgers, P.J.), the uncertainty of the affect on the Petitioner’s financial interests is dispositive.

Another firm’s possible reference to Hoffman’s findings before the Conservation Commission is too remote to preclude the Petitioner’s participation in that public body’s consideration of the matter. Further, since the Conservation Commission has no discretionary authority over the proposal, there is no possible way for the Petitioner to use his public position to benefit his son-in-law’s company/his employer. Accordingly, he may participate and/or vote on the Conservation and the Soil Erosion Commissions’ consideration of the proposal.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-6

36-14-7(a)

Related Advisory Opinions:

98-128

98-81

96-6

95-105

95-12

93-14

Keywords:

Discretionary authority

Family: business interest

Private employment