Advisory Opinion No. 99-130

Re: Michael P. DeFrancesco

QUESTION PRESENTED

The petitioner, a Town of Exeter Planning Board member, a municipal appointed position, requests an advisory opinion as to whether he may participate in matters concerning a Job Corps facility to be located at the Ladd Center, a development project in the Town of Exeter, given that his engineering firm is preparing the master plan for the Ladd Center under a contract with the Rhode Island Economic Development Corporation.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Town of Exeter Planning Board member, a municipal appointed position, may not participate in matters concerning a Job Corps facility to be located at the Ladd Center, a development project in the Town of Exeter, given that his engineering firm is preparing the master plan for the Ladd Center under a contract with the Rhode Island Economic Development Corporation. We note that at this time, the master plan is not yet complete or approved. Given that the master plan is still in process, there is an intersection of his private interests and the fiduciary duty he would owe the Town as a participating member of the Planning Board that requires his recusal on Job Corps matters, as well as on any other matters that come before the Planning Board involving the project. Additionally, if after the master plan is approved the petitioner still has or foresees having private involvement in the Ladd Center project, he should recuse from participation in future Job Corps matters, as well as on any other matters that come before the Planning Board involving the project.

The petitioner states that his engineering firm, the Maguire Group, which has a contract with the Department of Economic Development to develop the master plan for the Ladd Center in the Town of Exeter. The federal Department of Labor and the State of Rhode Island have proposed that a Job Corps facility be located in the Ladd Center. The approval process for the Job Corps facility includes performing an Environmental Assessment that is currently pending before the Exeter Planning Board. The petitioner asks whether the law requires that he recuse on this and other Job Corps submittals.

Under the Code of Ethics, a public official 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 an official has reason to believe or expect that he, a business associate 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 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, a business associate, an employer, business associate, or a business that he represents.

The Commission concludes that the Code of Ethics prohibits the petitioner from participating as a member of the Town of Exeter Planning Board in matters concerning the Job Corps facility, as well as on any other matters that come before the Planning Board involving the project. When matters involving or related to the project come before the Planning Board, an intersection of interests between the petitioner’s responsibilities and personal financial interests as a principal in an engineering firm that is contracted to develop the master plan for the Ladd Center and the fiduciary duty he owes to the Town as a member of the Planning Board results. Pursuant to Commission Regulation 36-14-6001, a public official has reason to believe or expect that a conflict of interest exists when it is “reasonably foreseeable.” Here, since the master plan involves the Ladd Center and the Job Corps facility is part of the project, it is reasonably foreseeable that a substantial conflict of interest and/or an impairment of his independence of judgment will occur given his firm’s involvement in the project. We note that if the master plan is complete and/or approved, but that it foreseeable that the Maguire Group will still be involved in the Ladd Center project, that the petitioner should continue to recuse on Job Corps matters when they come before the Exeter Planning Board. Notice of recusal should be filed with the Planning Board and with the Ethics Commission. R.I. Gen. Laws § 36-14-6.

Code Citations:

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

Related Advisory Opinions:

98-143
98-70
98-18
96-61

Keywords:

Business Interest
Regulatory Decisions