Advisory Opinion No. 99-100

Re: Noel Berg

QUESTION PRESENTED

The petitioner, the Vice Chairperson of the Tiverton Conservation Commission and a Tiverton Planning Board member, municipal appointed positions, requests an advisory opinion as to 1) whether his simultaneous service on both public bodies creates a conflict of interest and if so, may he cure the conflict by serving on the Conservation Commission in a non-voting capacity; and 2) whether he must recuse from participation in the Planning Board’s review of a subdivision proposal and/or related zoning amendment, given that the Conservation Commission previously recommended against the amendment.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner’s simultaneous service on the Tiverton Conservation Commission and the Tiverton Planning Board, municipal appointed positions, does not, in and of itself, present a conflict of interest under the Code of Ethics. Further, the petitioner may participate in both entities’ review of the subdivision proposal and/or related zoning amendments, provided that neither matter would have a financial impact on the other public body or the petitioner himself. See R.I. Gen. Laws §§ 36-14-5(a) and (d).

The petitioner advises that the opinions of the Tiverton Conservation Commission at times may be in conflict with matters before the Planning Board for review and approval. Presently, the Planning Board is reviewing a subdivision proposal for which the developer has requested Town Council approval for an amendment to a zoning ordinance. He indicates that the Conservation Commission previously advised the Council that the proposed amendment is contrary to the Town’s Comprehensive Plan.

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 may not use his office for pecuniary gain, other than provided by law, for himself, family, employer, business associate, or a business that he represents.

Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to simultaneous service as a member of both the Conservation Commission and the Planning Board. 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 duty in the public interest. Here, it is likely that matters in which the Conservation Commission has an interest, or on which the Commission has taken a position, will appear, at least indirectly, before the Planning Board. 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.

The petitioner is advised, for instance, that he would not be able to participate as a Conservation Commission member in any matters affecting the Planning Board while serving as a member of that Board. A matter does not affect the Planning Board, however, merely because it is within the jurisdiction of that Board. Similarly, a matter before the Planning Board does not affect the Conservation Commission simply because its subject matter falls within the purview of the Commission.

Rather, there must be an effect on the entity itself, whether in terms of composition, compensation or otherwise. Absent some direct financial nexus between his actions as a public official wearing one hat and his position as a public official wearing another hat, there is no intrinsic conflict of interest that would preclude such simultaneous service. See A.O. 98-75. In the event that any matter comes before either body which would have a financial impact on the other body or the petitioner himself, the petitioner should (a) notify the appropriate entity, in writing, of the nature of his interest in the matter at issue, and (b) recuse from any participation or voting in connection with such matter. Notice of recusal should be filed with the Conservation Commission/Planning Board and with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

In sum, while simultaneous service in either of the two positions is not barred by the Code of Ethics, the relevant statute and regulations require that the petitioner be particularly vigilant as to the matters in which he participates. If the petitioner finds that he is faced with numerous potential conflicts which require his recusal from either Conservation Commission or Planning Board matters on a regular basis, he should should seek another advisory opinion as to whether he may simultaneously serve in both positions. See R.I. Gen. Laws § 36-14-5003. Finally, Section 5(e) of the Code provides, inter alia, that no public official may represent any other person before a state or municipal agency of which he or she is a member. This restriction would apply to the petitioner’s appearance before either the Conservation Commission or the Planning Board to represent the interests of the other entity of which he is a member.

Code Citations:

36-14-5(a)
36-14-5(b)
36-14-5(d)
36-14-5(e)
36-14-6
36-14-7(a)
36-14-5003

Related Advisory Opinions:

99-89
99-12
99-22
99-2
98-116
98-104
98-37
97-127
95-22

Keywords:

Dual Public Roles
Recusal