Advisory Opinion No. 99-101

Re: Fred S. Pease

QUESTION PRESENTED

The petitioner, a former Jamestown Town Councilor, a municipal elected position, requests an advisory opinion as to whether he may apply for the position of Town Sergeant if he serves in a volunteer capacity.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a former Jamestown Town Councilor, a municipal elected position, from accepting appointment as Town Sergeant provided that he does not accept compensation or benefits. See R.I. Gen. Laws § 36-14-5(e).

The petitioner advises that he wishes to apply for the position of Town Sergeant with the Town of Jamestown. He represents that he recently completed serving on the Jamestown Town Council, but would like to serve in the Town Sergeant position in a volunteer capacity.

The Code of Ethics provides that, for a period of one year after a person has officially terminates his or her position with any state or municipal agency, that person shall not appear before the state or municipal agency on which the person had served. R.I. Gen. Laws §§ 36-14-5(e)(1) and 5(e)(4). Pursuant to Commission Regulation 5006, no elected or appointed official may accept any appointment by the body of which he or she is a member, to any position which carries with it any financial benefit or remuneration while a member of the body and for a period of one year after termination of membership on said body, unless the Ethics Commission shall give its approval of such appointment. Regulation 5006 further provides that the Commission shall not grant such approval unless it "is satisfied that denial of such employment or position would create a substantial hardship for the body, board, or municipality."

The Commission has concluded that a public official may not accept employment from the body on which he or she serves, for a period of one year following termination of the official’s membership on said body. See A.O. 97-26; A.O. 97-17; and A.O. 96-85. However, the Commission has permitted an official to accept such an appointment within that period, provided that the appointment was to a volunteer position or the official agreed to waive the receipt of compensation and benefits and serve in a volunteer capacity. See A.O. 97-138 (finding that a Pawtucket City Councilor could accept appointment from the City Council to a board within that municipality within one year of his official severance from his position as Councilor provided that he serves in such position as an unpaid volunteer); and A.O. 96-35 (advising a North Kingstown School Committee member that he should accept appointment as a volunteer baseball coach for the School Department since he would serve without compensation). However, the volunteer appointment must not be a ruse to subvert the revolving door provision. See A.O. 97-117 (concluding that the former Town Councilor should not circumvent the Code of Ethics by assuming the Senior Center Director position and serving as a volunteer only for the period of one year after her term in office ended and then accept financial and other benefits as compensation for her work as Director as soon as the one-year period ends).

Without a showing of hardship to the Town Council, the petitioner may not accept appointment from his own Board to a position which carries with it remuneration of any kind nor may he appear before the Board during that time as provided in R.I. Gen. Laws § 36-14-5(e) and Commission Regulation 5006. However, provided the petitioner agrees to waive the receipt of any financial benefit and/or remuneration, the Commission concludes that he may apply for the position of Town Sergeant in a volunteer capacity. While Section 5(e) of the Code prohibits the petitioner from appearing before the Town Council to apply and/or interview for the position of Town Sergeant, based upon his specific representation that he would serve in a volunteer capacity, the Commission finds that the prohibition should not apply in this instance. Accordingly, the petitioner may appear before the Town Council for the limited purpose of applying for the Town Sergeant position on a volunteer basis.

Code Citations:

36-14-5(a)
36-14-5(e)
36-14-6
36-14-7(a)
36-14-5006

Related Advisory Opinions:

99-76
99-60
99-2
98-153
98-104
98-83
97-138
97-125
97-117
97-27
97-26
97-17
96-85
96-35

Keywords:

Hardship Exception
Prospective Employment
Revolving Door