Advisory Opinion No. 99-11

Re: Dennis Barker

QUESTION PRESENTED

The petitioner, a Glen Farm Authority member, a municipal appointed position, requests an advisory opinion as to whether he may participate in a vote of confidence for a lease being proposed by a company with whom he will work as a subcontractor.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Glen Farm Authority member, a municipal appointed position, may not participate in as a Glen Farm Authority member regarding a lease being proposed by a company with whom he will work as a subcontractor.

The petitioner is a member of the Glen Farm Authority in Portsmouth and is appointed by the Town Council. The Glen Farm Authority oversees the operation of Glen Farm. The petitioner represents that he may subcontract with Glenworks as its electrician. Glenworks is proposing to lease 12 acres of Glen Farm. Although the lease is not approved by the Glen Farm Authority, Glenworks will appear before the Glen Farm Authority to seek "a vote of confidence" which will be forwarded to the Portsmouth Town Council. The Town Council must actually approve the lease of Glen Farm property.

The Code of Ethics provides that a public official shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment, transaction which is in substantial conflict with the proper discharge of his or her duties in the public interest. A substantial conflict of interest occurs if the public official has reason to believe or expect that he or she or any family member or business associate, or any business by which he or she is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, the Code provides that the public official shall not accept other employment which will either impair his or her independence of judgment as to his or her official duties or induce his or her to disclose confidential information acquired by him or her in the course of and by reason of his or her official duties. R.I. Gen. Laws § 36-14-5(b). Section 5(f) of the Code requires a business associate to notify the agency of the nature of his/her business relationship with the public official and requires the public official to recuse her/himself from voting or participating in consideration and disposition of the matter at issue. An individual is a "business associate" of a public official if the official and that individual are "joined together" to "achieve a common financial objective." R.I. Gen. Laws § 36-14-2(8).

Based on previous advisory opinions and the Code of Ethics, we conclude that the petitioner, an appointed member of the Glen Farm Authority, must recuse himself from participation in consideration of matters of business associates. In this matter, we conclude that the member is a "business associate" of the company that he will perform services for and continues to be such until he is paid and no future relationship is anticipated. The petitioner should file a recusal notice in accordance with Section 6 of the Code with the Glen Farm Authority and with the Ethics Commission. This opinion is based not only on the petitioner's business associate relationship, but also because, given the on-going business relationship between the petitioner and the firm for which he will perform services, he has interests in substantial conflict with his public duties if he takes part in consideration of these matters. Additionally, although this vote is not the actual approval of the lease it does not necessarily follow that it is only advisory in nature or outside the scope of the Code of Ethics. For instance, the Supreme Court in Celona v. Rhode Island Ethics Commission, 544 A.2d 582, 586 (R.I. 1988), held that the members of the North Providence Town Council violated the Code of Ethics when they enacted a preliminary resolution granting themselves $100 in monthly expense money. Although the resolution required final approval by the General Assembly, the Court found that the Council members had reason to believe or expect that the passage of a resolution would result in a personal financial benefit since the General Assembly generally adopted verbatim resolutions to amend a Town Charter. The participation of the petitioner in the instant matter is substantially similar to the Celona case in that the recommendation or "vote of confidence" by the petitioner may result in a benefit for his business associate, Glenworks.

Code Citations:

36-14-5(a)
36-14-5(b)
36-14-5(f)
36-14-7(a)

Related Advisory Opinions:

98-117
97-7
96-100
94-60

Related Case Law:

Celona v. Rhode Island Ethics Commission, 544 A.2d 582, 586 (R.I. 1988)

Keywords:

Private employment