Advisory Opinion No. 99-69

Re: Dennis Whitman

QUESTION PRESENTED

The petitioner, the Chairperson of the Pascoag Fire District Board of Utility Commissioners, a regional elected position, requests an advisory opinion as to whether the law requires that he recuse himself from participating in the Board’s consideration of a personnel complaint filed against him.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Chairperson of the Pascoag Fire District Board of Utility Commissioners, a regional elected position, may not participate and/or vote in the Board’s consideration of a personnel complaint filed against him.

Under the Code of Ethics, the petitioner may 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 duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if he 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 § 36-14-7(a). Further, he may not use his position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate, or any business which he represents or by which he is employed. See R.I. Gen. Laws § 36-14-5(d).

Recently, in determining whether members of the Contractor’s Registration Board may take disciplinary action against one of their own contractor members, the Commission found, inter alia, that the affected Board member may not participate in any aspect of the Board’s consideration of the matter. A.O. 98-29. By participating in the Board of Utility Commissioners’ consideration of a complaint filed against him, the petitioner would place himself in the position of passing judgment upon his own actions. While such action clearly amounts to an appearance of impropriety, the Code prohibits him from taking any official action which would affect his financial interests. Since the petitioner presently does not receive remuneration for his position on the Board, we must examine whether his participation otherwise would affect his financial interests.

In previous advisory opinions, the Commission has found that a public official should not take certain actions because he or she was a party or attorney in a pending suit or complaint. See A.O. 98-134 (concluding that the Tiverton Town Clerk, in his capacity as the Town Administrator Pro Tem, should not review a complaint alleging a charter violation filed against a majority of Town Councilors given that the complainant also filed a complaint against him for Open Meetings violations); A.O. 95-61 (finding that a Lincoln Town Councilor should not participate in matters involving the Lincoln Greyhound Park since he was representing a client in a suit against the Park); and A.O. 94-26 (concluding that a Johnston Zoning Board member should not participate in consideration of an application where she was the defendant in a slander suit filed by the applicant).

Here, in the event that a personnel complaint is filed against the petitioner, it is reasonably foreseeable that litigation, of some other action affecting his employment status, could result, thereby impacting his financial interests. As a result, his participation in the Board’s consideration of such a complaint would constitute a substantial conflict of interest requiring the petitioner’s recusal pursuant to Section 6. Accordingly, he should recuse himself from participation and/or vote in the consideration of any such matter. Notice of recusal should be filed with both the Commission and the Pascoag Fire District in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-6
36-14-7(a)

Related Advisory Opinions:

98-134
98-29
98-18
93-56

Keywords:

Financial Interest
Recusal