Advisory Opinion No. 99-103

Re: Bruce J. Santa Anna

QUESTION PRESENTED

The petitioner, the North Smithfield Planning Board Chairperson, a municipal appointed position, who simultaneously serves as an inspector with the state Department of Transportation (DOT), a state employee position, requests an advisory opinion as to potential conflicts of interest that may arise given that applicants before the Planning Board or others involved in their projects also may be involved with the DOT, specifically on projects for which the petitioner serves as inspector.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the North Smithfield Planning Board Chairperson, a municipal appointed position, may participate in matters where an applicant before the Planning Board or others associated with the applicant are also involved in matters with the state Department of Transportation (DOT) where he is an inspector provided that the petitioner believes that his independence of judgment is not impaired as to his public duties and the applicant or applicant's associates are not involved in litigation or some other matter that affects DOT or himself.

The Department of Transportation employs the petitioner in its Construction Section as an inspector. He also serves as the North Smithfield Planning Board Chairperson. The North Smithfield Planning Board is responsible for reviewing various proposed projects and determining their compliance with the Town's Comprehensive Plan and ordinances. The petitioner asks about three particular scenarios that may arise in his capacity as a Planning Board member. They are as follows:

1) A Planning Board applicant is a firm that is currently the prime contractor on a project that the petitioner is assigned to as an inspector.

2) A Planning Board applicant submits plans prepared by a consulting firm that has drawn and designed the project that the petitioner is currently assigned to as an inspector.

3) A Planning Board applicant uses engineering or a site-developing contractor whose firm is a subcontractor on the project that the petitioner is currently assigned to as an inspector.

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 or her office for pecuniary gain, other than provided by law, for him(her)self, family, employer, business associate, or a business that he/she represents.

Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to simultaneous service as an appointed member of the North Smithfield Planning Commission and an employee of the DOT. 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 or employee's duty in the public interest. The prohibition would extend to matters that affected the DOT or his employment with the DOT or the North Smithfield Planning Board generally. A substantial conflict of interest is not apparent by the petitioner holding these positions which may only involve the other public entity (i.e. an applicant is also a contractor on a project the petitioner is overseeing) unless for some reason these matters impact the other public entity or the petitioner (i.e. litigation involving the DOT and the petitioner and a project applicant or Planning Board substantive review of DOT decisions). Additionally, recusal would be required if the petitioner believed that his independence of judgment would be impaired with respect to his service on the Planning Board or at the DOT.

In sum, while simultaneous service in the two positions is not barred by the Code of Ethics, the relevant statute and regulations would require that the petitioner be particularly vigilant as to the matters he participated in. Consequently, the three situations that the petitioner has described do not prohibit him from participating as a Planning Board member unless he believed that his independence of judgment would be impaired or the applicant or applicant's associates were involved in litigation or some other matter that affects the DOT or himself. In that event, 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 Planning Board/Department of Transportation and with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

99-89

99-12

98-104

98-3

98-99

98-87

98-37

98-21

96-26

96-9

95-22

93-81

91-63

87-16

Keywords:

Dual Public Roles