Advisory Opinion No. 99-26

Re: Stone Bridge Fire District/ Henry E. Curran

QUESTION PRESENTED

The petitioner, a Stone Bridge Fire District Administrative Board (District) member, a regional elected position, through counsel, requests an advisory opinion as to whether he is required to recuse from participating on matters affecting the water supply to a power plant given that he will be employed by the construction manager for the power plant that will purchase water from the District.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Stone Bridge Fire District Administrative Board (District) member, a regional elected position, who is employed with the construction manager for a power plant project in the Town of Tiverton, may participate in matters concerning the water supply to that power plant. The potential for any official action by the petitioner to affect the financial interests of his employer, the construction manager, thereby constituting a substantial interest under the law, is too remote and speculative to trigger prohibitions under the Code of Ethics.

Tiverton Power Associates is constructing a power plant in Tiverton. Stone & Webster Engineering has been retained as the construction manager for the power plant and the petitioner will be employed as the assistant superintendent for Stone & Webster on the project. The District does not tax the power plant property as it is outside the geographical area. However, the District will supply water to the plant during and after construction. The District also sets the water charges for wholesale and retail customers as a class. Finally, as they arise, the District may deal with other issues relating to the supply of water to the power plant.

Pursuant to the Code of Ethics, the petitioner, as a member of the Stone Bridge Fire District Administration Board, 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 in the public interest. A substantial conflict of interest occurs if the petitioner has reason to believe or expect that he or any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, the petitioner may not accept employment that will impair his judgment. See R.I. Gen. Laws § 36-14-5(b). He is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate or a family member. See R.I. Gen. Laws § 36-14-5(d).

Here, the power plant will be purchasing water from the District, as would any other customer. The District already has set the rate paid by retail and wholesale customers and already has determined that the power plant will pay a retail rate. While these and other matters that arise may impact the power plant owners, the potential for a benefit or detriment affecting the petitioner's employer, and thereby constituting a substantial interest under the law, is too remote and speculative to trigger prohibitions under the Code of Ethics. Also, to the extent the petitioner may become privy to confidential information as a result of his public position, he may not use or disclose such information to benefit his employer. See R.I. Gen. Laws § 36-14-5(c). Finally, under the provisions of R.I. Gen. Laws § 36-14-5(e), the petitioner may not appear before the District on behalf of his employer.

Code Citations:

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

Related Advisory Opinions:

95-25
98-25
98-28
98-41
98-145
99-5

Keywords:

Private employment