Advisory Opinion No. 99-109

Re: John K. Cook

QUESTION PRESENTED

The petitioner, the East Greenwich Director of Public Works, a municipal appointed position, requests an advisory opinion as to whether he may accept appointment to the Kent County Water Authority, given that the Department of Public Works issues street opening permits to all utility companies, including the Kent County Water Authority.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the East Greenwich Director of Public Works, a municipal appointed position, may accept an appointment to the Kent County Water Authority since neither he nor his Department exercise any discretionary authority and/or control over the Water Authority.

The petitioner advises that the Kent County Water Authority is a self-governing body composed of one representative from each of the communities it services. The Town of East Greenwich does not supervise or direct any of its activities. The petitioner further represents, however, that the Department of Public Works (DPW) issues street opening permits to all utility companies, including the Water Authority, to identify the entity responsible for opening a street in the event of a claim for damages. He indicates that permits are issued automatically upon presentation of a certificate of insurance. No discretionary authority is exercised by himself or by members of his department once this threshold requirement is met. He further advises that, if appointed, he will recuse himself from signing any permits issued to the Water Authority.

Under the Code of Ethics, the petitioner 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 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 §§ 36-14-5(a), 7(a). He may not accept outside employment that will impair his independence of judgment as to his official duties or employment. See R.I. Gen. Laws § 36-14-5(b). He also 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).

Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to simultaneous service as the Director of the East Greenwich DPW and a Kent County Water Authority Board member. 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 or employee’s duties in the public interest. For instance, the petitioner is advised that he would not be able to participate in DPW matters affecting the Water Authority while serving as a member of that Board. Here, the petitioner represents that the DPW has no control and/or supervisory responsibility over the Water Authority, aside from issuing street opening permits to all utility companies. As such, there is no reason to believe or expect that the Water Authority will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity.

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 in which he participates. In the event that any matter comes before the DPW which would have a financial impact on the Water Authority, the petitioner should recuse himself from participation. Additionally, recusal would be required if the petitioner believed that his independence of judgment would be impaired with respect to his service either at the DPW or on the Water Authority. Notice of recusal should be filed with both the Town of East Greenwich and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. 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 Water Authority or the DPW 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)

Related Advisory Opinions:

99-103
99-100
99-89
99-81
99-62
99-22
99-12
98-143
98-104
98-87
98-75
98-37
98-21
96-26
96-9
95-22
93-81
91-63

Keywords:

Discretionary Authority
Dual Public Roles