Advisory Opinion No. 99-110

Re: Pawtucket Water Supply Board - Mary E. Tetzner

QUESTION PRESENTED

The petitioner, the City of Pawtucket Water Supply Board, which is comprised of municipal appointed positions, requests an advisory opinion as to whether a member of the Board may also be a member of City Council, with the ability to vote on the same issues as a member of both entities.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit a member of the City of Pawtucket Water Supply Board ("Board") from also serving as an elected City Councilor.

The petitioner represents that a referendum was passed by the voters of the City of Pawtucket approving a change to the Board in that a member of the City Council would now serve on that Board, ex officio. Since that time, a member of the Town Council has been appointed to the Board and has expressed opinions that he would not approve an issue as a member of the Board or as a member of the Town Council when the issue reaches that body. The Board unanimously voted to seek an advisory opinion from the Ethics Commission regarding this situation.

The Code of Ethics provides, among other things, that a public official may not participate in matters where he/she has a substantial conflict of interest, use his/her office for pecuniary gain, or accept employment that would impair his/her independence of judgment as to his official duties. See R.I. Gen. Laws § 36-14-5(a), 5(b), 5(d), 7(a). A substantial conflict of interest exists if the public official has reason to believe or expect that he/she, or a business associate, or any business by which he/she is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his/her official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a).

No provision in the Code of Ethics prohibits voting in one forum and then in another. While the Commission has not issued an advisory opinion on the ability to vote on a matter twice due to holding two public positions, it has considered the issue in somewhat analogous circumstances. In Advisory Opinion 96-45, the Commission concluded that the Code of Ethics did not prohibit a family member from participating as a member of the "appellate" body hearing matters that previously were voted on by another family member provided those individuals did not have other conflicts of interest. While that scenario is different from the instant matter, the analysis is the same given the status of family members under the Code. Another opinion, Advisory Opinion 97-94, concerned a Block Island Town Councilor who also sat on a Health Services Board of Directors due to the Town's financial interest in the facility. The Commission advised that the Town Councilor could participate in matters directly or indirectly affecting the Block Island Health Services, Inc., since there was no personal financial incentive for Council members to either serve on the Board or in the health services business generally. See also, A.O. 97-145 (concluding no substantial conflict of interest for the Executive Director of RIHMFC, who served as an ex officio member of the State Housing Appeals Board, to participate in a matter affecting a prior applicant before RIHMFC).

The current request is similar to those matters in that the Town Councilor is serving on the Board as a representative of Town Council. As such, his function is to serve the public interest rather than to represent some private financial interest. Because the Town Councilor derives no personal gain or interest from serving on the Board, nothing in the Code of Ethics prohibits his participation as a Town Councilor on Board matters.

Code Citations:

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

Related Advisory Opinions:

96-45
97-10
97-94
97-145
98-132
99-57

Keywords:

Dual Public Roles