Advisory Opinion No. 99-22

Re: Karla P. Driscoll, Executive Director

QUESTION PRESENTED

The petitioner requests an advisory opinion as to whether she may accept appointment to the Quonset Davisville Management Corporation (QDMC), a state appointed position, if she also serves as a) a member of the Rhode Island Human Resource Investment Council (HRIC), a state appointed position, b) a member of the Quonset Stakeholders Committee for Port Development; c) the Executive Director of the North Kingstown Chamber of Commerce; and d) a member of the Small Business Advisory Council.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a member of the Rhode Island Human Resource Investment Council (HRIC) and the Quonset Stakeholders Committee for Port Development, all state appointed positions, from serving as a member of the Quonset Davisville Management Corporation (QDMC), a state appointed position, notwithstanding the fact that she serves as Executive Director of the North Kingstown Chamber of Commerce and is a member of the Small Business Advisory Council. Under the Code of Ethics, a public official may not act where she has an interest in substantial conflict or use her position, other than as provided by law, to benefit herself, a business associate, or her employer. Here, there is no evidence that the petitioner's simultaneous service as a member of the HRIC, the QDMC, and/or the Stakeholders Committee will benefit herself or her employer. However, as a member of the HRIC, the Stakeholder's Committee or for the QDMC, the petitioner should recuse herself whenever her interests or the interests of her employer, the North Kingstown Chamber of Commerce, appear before those state agencies.

The petitioner is a member of the Rhode Island Human Resource Investment Council, which is, among other things, responsible for dispersing funds to the Rhode Island Economic Development Corporation (EDC), a public corporation. The QDMC is a subsidiary corporation of the EDC and largely serves as an advisory committee to the EDC concerning the development of the Quonset/Davisville Port and Commerce Park. Also, the Petitioner serves as a member of the Quonset Stakeholders Committee for Port Development, a collaboration of public and private entities responsible for evaluating development proposals for Quonset Point. In her private capacity, the petitioner serves as the Executive Director of the North Kingstown Chamber of Commerce and is a member of the Small Business Advisory Council, a federal advisory committee which is not involved in the development of Quonset Point. The petitioner is not compensated for her service for the HRIC and the Stakeholders Committee nor would she be compensated as a member of the QDMC. [Note, in her request, the petitioner indicated that she also served as a member of a Community Advisory Committee, a special committee to decide special zoning issues relevant to the properties at Quonset. The petitioner now represents that this Committee has been disbanded by a legislative act].

Under the Code of Ethics, a public official may not use her position, other than as provided by law, to benefit herself, and may not participate in any matter in which she has an interest in substantial conflict with her public duties. A substantial conflict of interest exists if an official has reason to believe or expect that she, a business associate or an employer will derive a direct monetary gain or loss by reason of her 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 from accepting other employment that will either impair her independence of judgment as to her official duties or employment or require her 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 her office for pecuniary gain, other than provided by law, for herself, a business associate, an employer, business associate, or a business that she represents.

Here, it is likely that the interests of QDMC will appear, at least indirectly, before the HRIC since that agency distributes funds to the EDC, QDMC's parent entity. Also, the interests of QDMC may appear before the Stakeholders Committee since both entities are involved with the development issues relating to Quonset Point. However, although there may be overlap in the Petitioner's public roles, a substantial conflict of interest is not apparent by the petitioner holding these positions which may only involve the other public entity. Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to simultaneous service as appointed members of the HRIC, the Stakeholders Committee, or the QDMC. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out her official’s duties in the public interest as a member of the various state agencies. For there to be an interest in substantial conflict, there must be some evidence of a financial nexus between the petitioner's public positions and her private interests. For instance, the Petitioner could not participate as a member of the QDMC, the HRIC, or the Stakeholders Committee in any matter that would affect her or her employer, the North Kingstown Chamber of Commerce. See A.O. 99-12 (opining that the Chief of Permitting for the Office of Water Resources at the Department of Environmental Management (DEM) may accept an appointment as Chairperson of the Cranston Planning Commission but must recuse himself from any matters that affected the DEM or his employment with DEM); A.O. 98-87 (advising a North Kingstown Councilor who also served as a member of the Quonset Davisville Management Corporation that he could accept part-time employment with the Rhode Island Economic Development Corporation provided that he recuses himself when matters involving or affecting the EDC or QDMC come before the Town Council). However, absent some direct financial nexus between her actions as a public official wearing any different hat and her or her employer's interest, there is no intrinsic conflict of interest that would preclude her from accepting the appointment to the QDMC. See A.O. 98-75 (advising a member of the Highway Commission, the Finance Board and the Economic Development Commission for the Town of Hopkinton that the Code of Ethics did not prohibit him from serving as a member of the Chariho Regional School Committee absent a direct financial nexus between his actions as a public official wearing one hat and his position as a public official wearing a second hat).

[Note, in a number of earlier opinions the Commission advised petitioners serving in dual public roles that they must recuse themselves when acting in a matter that involved another public entity with which they either served or were employed. Recently, the Commission has distinguished between simply holding two public positions and being able to affect yourself or an entity that employs you. Compare A.O. 98-116 with A.O. 99-12].

Code Citations:

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

Related Advisory Opinions:

99-12
98-116
98-104
98-99
98-87
98-37
98-21
98-3
96-26
96-9
95-22
92-81
91-63

Keywords:

Dual public roles