Advisory Opinion No. 99-12

Re: Russell J. Chateanueuf

QUESTION PRESENTED

The petitioner, the Chief of Permitting for the Office of Water Resources at the Department of Environmental Management (DEM), a state employee position, requests an advisory opinion as to whether he may accept an appointment as Chairperson of the Cranston Planning Commission given that matters before the Planning Commission may involve DEM.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Chief of Permitting for the Office of Water Resources at the Department of Environmental Management (DEM), a state employee position, may accept an appointment as Chairperson of the Cranston Planning Commission.

The petitioner, as Chief of Permitting for the Office of Water Resources at DEM, oversees staff and reviews and issues permits relating to wetlands, septic system, sewage treat plant discharges, sewerage facility expansion, groundwater discharges, water quality impacts, and private drinking water well variances. The Planning Commission is responsible for reviewing various proposed projects and determining their compliance with the city's Comprehensive Plan and ordinances. Frequently, applicants for these projects are also required to obtain a DEM permit. As such if the petitioner accepts the appointment, he would be in a position of requiring projects appearing before the Planning Commission to obtain DEM permits, reviewing and/or supervising the review of DEM permit applications of those previously appearing before him at the Planning Commission, and/or reviewing projects that have already received DEM permits at the Planning Commission.

Under the Code of Ethics, a public official or employee may not use his position, other than as provided by law, to benefit himself, and may not participate in any matter in which he has an interest in substantial conflict with his public duties. A substantial conflict of interest exists if, for example, an official has reason to believe or expect that he or an employer will derive a direct monetary gain or loss by reason of his official activity. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). Also, R.I. Gen. Laws § 36-14-5(b) prohibits a public official or employee from accepting other employment that will either impair his independence of judgment as to his official duties or employment or require him to disclose confidential information acquired by him in the course of his official duties. Finally, R.I. Gen. Laws § 36-14-5(d) provides that a public official cannot use his or her office for pecuniary gain, other than provided by law, for him(her)self, family, employer, business associate, or a business that he/she represents.

Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to simultaneous service as an appointed member of the Cranston Planning Commission and an employee of the DEM. 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 or employee’s duties in the public interest. The prohibition would extend to matters that affected the DEM or his employment with DEM or the Cranston Planning Commission generally. A substantial conflict of interest is not apparent by the petitioner holding these positions which may only involve the other public entity, ie, advising a project applicant that a DEM permit is required, reviewing a project that had received a DEM permit for compliance with the Cranston Comprehensive Plan, or supervising the DEM permit review of a Cranston Planning Commission applicant, unless for some reason these matters impact the other public entity or the petitioner (i.e. litigation involving DEM and the petitioner and a project applicant or Planning Commission substantive review of DEM permitting decisions). Additionally, recusal would be required if the petitioner believed that his independence of judgment would be impaired with respect to his service on the Planning Commission or at DEM. In sum, while simultaneous service in the two state 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 he participated in.

[Please note that the Commission has previously issued a number of opinions advising petitioners that they must recuse when acting in a matter that involves another public entity with which they are either employed or on which they serve. However, in recent years, the Commission has tried to draw a distinction between simply holding two public positions and being able to affect the other entity or yourself]

Code Citations:

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

Related Advisory Opinions:

98-104
98-3
98-99
98-87
98-37
98-21
96-26
96-9
95-22
93-81
91-63
87-16

Keywords:

Dual public roles