Theodore Vecchio: An Insider Loophole in the Code of Ethics

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The little oversight that the state does have for public officials and their duties is found via a constitutionally mandated agency called the Rhode Island Ethics Commission. Commissioners are appointed by the governor and the minority and majority leadership of the General Assembly for five-year terms or until they are replaced. This body, among other things, interprets the general laws and provides advisory opinions as requested based on the Code Of Ethics.

There is a fatal flaw within this procedure, however. For example, in the case below, we have a duly elected town council member in Cumberland who happens to be employed by the Town of North Providence. An issue before the council involved a business owned by the son of the mayor of North Providence. It was for implementation of a tow ordinance that required tow companies on the town tow list to actually own and operate a tow truck (which one did not) among several other requirements. An advisory opinion was requested by the council member only after I questioned if he should abstain.

An excerpt of advisory opinion 2018-51 is below:

Here, although the Petitioner is employed by the Town of North Providence, the Town of North Providence is not a “business” as that term is used in the Code of Ethics. See A.O. 2018-3 (the Town of Johnston is not a “business” as that term is used in the Code of Ethics); A.O. 2002-55 (the Town of Richmond is not a business as that term is used in the Code of Ethics). Because the Town of North Providence is not a business, the Petitioner and the Mayor are not business associates and therefore the above prohibitions of the Code of Ethics are not triggered. Furthermore, the Petitioner represents that he has no current or anticipated future business relationship with the Mayor’s son. Accordingly, the above prohibitions of the Code of Ethics are likewise not triggered.

So, as the above excerpt suggests, since the Town of North Providence does not meet the definition of “a business” and, therefore, the mayor and the councilman are not “business associates” as defined by the Code of Ethics document, then there is no reason to abstain. The excerpt cites a previous advisory opinion 2018-3, excerpt below:

Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, a business associate or any business by which the person is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a).

The whole argument is based on the misinterpretation of what a “business” and a “business associate” actually mean. If you want to assume for a second that cities and towns cannot fit within the definition of a business that is fine. However, there is still a direct and obvious association between an employee and an employer. These very terms suggest business of some sort and are used throughout the opinion. The opinion goes so far as to acknowledge an association between the two and seems to indicate that the Code of Ethics would be triggered if cities and towns were considered within their definition of business; therefore, business definition aside, an association is apparent.

In addition, I would argue that according to the Code of Ethics cities and towns due actually fall into the realm of their own definition of business. Here it is below:

“Business” means a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, trust or any other entity recognized in law through which business for profit or not for profit is conducted.

The key terms here are “corporation” and “or any other entity recognized in law.” Municipalities are actual standalone corporations and are recognized by law. The easiest way to prove this is when members of the public file claims against a city or town; one can see each city or town is recognized as its own entity (thus fulfilling the code’s definition). In the example cited above, it is also apparent that the tow company owned by the mayor’s son would derive a direct monetary gain or suffer a direct monetary loss by reason of the official activity of the mayor’s employee, since the company’s standing on the town tow list (and it’s ability to provide town services for a fee) would be directly voted on by the town council. For these reasons the code should have been triggered.

This is not to say that the councilman voted one way or the other based on his association with the mayor and/or employer. This is to say that there is a possibility that his decision could be influenced by said association. The idea of abstaining from a vote such as this is exactly what the ethics commission should be recommending to remove any and all possibility of influence. As one peruses the advisory opinions this is a common theme. All of these opinions seem to be misinterpreting and/or manipulating the code to fit a predetermined opinion. Instances described above seem to be exactly the reasons the constitution mandates such a commission. The flaw is not found in the actual code but instead in the commission’s ability to apply the code correctly.

It should be noted when I requested clarification for the decision above via email a response was never given.

 

Theodore Vecchio, Jr., helps manage two long-time businesses in the Town of Cumberland.  Growing up and spending most of his life in town,  he advocates for its betterment by attending town events, meetings, and forums. 



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