Advisory Opinion to the Governor, In re

• Decision Date: 23 January 1986
• Docket Number: No. 85-334-M,85-334-M
• Citation: 504 A.2d 456
• Parties: In re ADVISORY OPINION TO THE GOVERNOR (Conflict of Interest Commission). P.
• Court: Rhode Island Supreme Court

Page 456

504 A.2d 456

In re ADVISORY OPINION TO THE GOVERNOR (Conflict of Interest Commission).

No. 85-334-M.P.

Supreme Court of Rhode Island.

Jan. 23, 1986.

Stephen J. Carlotti, Richard G. Small, William R. Grimm, Hinckley Allen Tobin & Silverstein, John F. Bomster, John B. Henderson, Charles H. DeBevoise, Adler Pollock & Sheehan Inc., Providence, Joseph J. Roszkowski, John A. MacFadyen, III, Barbara Hurst, as amicus curiae for the Rhode Island Bar Ass'n.

Arlene Violet, Atty. Gen., Shelia Tobie Swan, Asst. Atty. Gen., H. Jefferson Melish, Legal Counsel for Conflict of Interest Com'n.

His Excellency Edward D. DiPrete

Governor of the State of Rhode Island and Providence Plantations

We acknowledge the receipt of a request from Your Excellency, pursuant to section 2 of article XII of amendments to the Rhode Island Constitution, for our opinion on the construction of G.L. 1956 (1984 Reenactment) chapter 14 of title 36, the Rhode Island conflict of interest statute.

The specific question asked by Your Excellency is as follows:

"DOES THE RHODE ISLAND CONFLICT OF INTEREST LAW, R.I.GEN.LAWS §§ 36-14-1 to 36-14-19, AS AMENDED, REQUIRE A STATE APPOINTED OFFICIAL, AS DEFINED BY THAT STATUTE, WHO IS A MEMBER OF A STATE AGENCY, TO RESIGN FROM THE STATE AGENCY WHEN BUSINESS IN WHICH THE OFFICIAL HAS A FINANCIAL INTEREST COMES BEFORE SUCH AGENCY OR DOES IT RATHER REQUIRE SOME LESSER ACTION ON HIS PART SUCH AS RECUSAL?"

Your Excellency asked this question in the context of Advisory Opinion No. 84-4, rendered by the Conflict of Interest Commission on February 23, 1984, to Robert C. Ray. Ray was a councilman for the town of Cumberland and also a 20 percent owner and employee of Luther A. Ray Builders, Inc., a company interested in submitting a bid to the town of Cumberland for the purchase of land owned by the town. The town had set up an open bidding procedure for the sale of this property. The commission advised that no violation of the conflict of interest statute, specifically § 36-14-4(e), subsections (1) and (2), would arise for Ray if he resigned his elective office on the town council prior to the council's consideration of the bid.

Initially, we would inform Your Excellency that it is our belief that it is appropriate for us to give our advice as to the question you pose. Article XII, sec. 2, of the amendments to our constitution provides that "[t]he judges of the supreme court shall give their written opinion upon any question of law whenever requested by the governor or by either house of the general assembly." It is well settled that this provision is mandatory when the inquiry falls within its purview. In re Advisory Opinion to the Governor, --- R.I. ---, ---, 483 A.2d 1078, 1079 (1984).

"[The] requirement to give advisory opinions was included in the constitution in order to enable the executive and legislative departments to more effectively discharge particular duties that are textually committed to them by the constitution." Opinion to the Governor, 96 R.I. 358, 363, 191 A.2d 611, 614 (1963). Thus it is appropriate to advise the chief executive when the question propounded has " 'a bearing upon a present constitutional duty presently awaiting [his or her] performance * * *.' " In re Request for Advisory Opinion Regarding House Bill 83-H-5640, --- R.I. ---, ---, 472 A.2d 301, 302 (1984). When the question deals with enacted legislation, it falls within the exclusive prerogative of the Governor, rather than the Legislature, to seek our advice. Opinion to the Governor, 109 R.I. 289, 291-92, 284 A.2d 295, 296 (1971).

Article VII, sec. 2, of our constitution provides that it is the responsibility of the Governor to see that the laws of the state are faithfully executed. Many of the laws of our state that create state agencies require that the Governor appoint some or all of their members. See, e.g., § 36-14-7 (the nine members of the Conflict of Interest Commission to be appointed by the Governor). Furthermore, art. VII, sec. 5, of the State Constitution requires the Governor to fill vacancies in office until they are filled by the general assembly or by the people. It is thus the Governor's constitutional duty to appoint state officers, and an interpretation of chapter 14 of title 36, enacted in 1976, amended in 1979, and reenacted in 1984, obviously relates to the effective discharge of that duty. For if resignation, rather than recusal, is required by the statute, it would be nonproductive for the Governor to appoint candidates with potential conflicts of interest to state office.

Since this inquiry is within the purview of our constitutional power to advise, a response from us will not, as is suggested, violate the doctrine of separation of powers. Opinion to the Governor, 96 R.I. at 362, 191 A.2d at 613. Article XII, sec. 2, of the amendments obligates the judges only in their capacities as individual judges and not as the judicial power of the state. Id. In such circumstances, "the doctrine of separation is not an absolute bar to enlarging the area in which advisory opinions are given * * *." Id. at 365, 191 A.2d at 615. Nor will we exercise the factfinding power of the court in reaching our decision. In re Request for Advisory Opinion Regarding House Bill 83-H-5640, --- R.I. at ---, 472 A.2d at 302. The inquiry before us presents a pure question of law, since in construing Rhode Island's conflict of interest statute our response will be limited to the circumstances of Mr. Ray as they have been presented to us.

We are aware of the fact that the same legal issue presented to us is presently before the commission in a complaint filed pursuant to § 36-14-9. ¹ Admittedly our established practice is to refrain from rendering advisory opinions when the questions propounded are involved directly or indirectly in litigation, whether in a judicial setting, Opinion to the House of Representatives, --- R.I. ---, ---, 433 A.2d 944, 944 (1981) (Superior Court), or as recently decided, in an administrative setting. In re Advisory Opinion to the Governor, --- R.I. ---, ---, 492 A.2d 134, 134 (1985) (Public Utilities Commission rate-setting determination).

However, the pending-litigation exception need not be applied in all circumstances. In an unreported 1945 opinion issued in response to a request by Governor John O. Pastore, reaffirmed in great detail in Opinion to the House of Representatives, 88 R.I. 396, 149 A.2d 343 (1959), our predecessors articulated the rationale behind the pendinglitigation exception. They allowed that the exception might be ignored under certain conditions:

" '[I]t was not intended by [sec. 2 of art. XII] in the absence of more extreme conditions than now appear to require the justices to give an advisory opinion on a question of law which is involved materially in * * * a pending * * * case.' " (Emphasis added.) Id. at 400, 149 A.2d at 345.

In this instance, we believe that the commission's demand that Mr. Ray resign his position on the Cumberland town council presents a threat to Your Excellency's ability to persuade qualified individuals to assume positions of public trust. The public interest therefore requires us to respond to your question now. ²

Our task in construing any statute is to effectuate and establish the intent of the Legislature. Howard Union of Teachers v. State, --- R.I. ---, ---, 478 A.2d 563, 565 (1984). When the language of a statute is unambiguous and expresses a clear and sensible meaning, there is no room for statutory construction or extension, and we must give the words of the statute their plain and obvious meaning. Fruit Growers Express Co. v. Norberg, --- R.I. ---, ---, 471 A.2d 628, 630 (1984). Such meaning is presumed to be the one intended by the Legislature, and the statute must be applied literally. Exeter-West Greenwich Regional School District v. Pontarelli, --- R.I. ---, ---, 460 A.2d 934, 936 (1983). When ambiguity renders construction necessary, an attempt must be made to "ascertain the legislative intention from a consideration of the legislation in its entirety, viewing the language used therein in the light, nature, and purpose of the enactment thereof." City of Warwick v. Almac's, Inc., --- R.I. ---, ---, 442 A.2d 1265, 1273 (1982). An interpretative regulation issued by an agency charged with the administration of a statute will ordinarily be given great weight when the statute is ambiguous and in need of interpretation, provided the agency's interpretation does not alter or amend the scope of the statute. Statewide Multiple Listing Service, Inc. v. Norberg, 120 R.I. 937, 940-41, 392 A.2d 371, 373 (1978).

Applying these principles to the conflict of interest law, we are of the opinion that §§ 36-14-4(a) and (g), 36-14-6, and 36-14-5 control whenever business in which a state or municipal appointed or elected official has a financial interest comes before the board or agency of which he is a member and that these provisions do not require resignation in circumstances such as those presented in the case of Mr. Ray.

It is the policy of the State of Rhode Island that "no elected or appointed state or municipal official use his office for personal gain in a manner inconsistent with the proper discharge of his duties." ³ Section 36-14-1. To implement this policy, the conflict of interest law prescribes "standards of conduct and disclosure requirements" to be observed by such officials in the performance of their official duties. Id.

Section 36-14-4 proscribes certain activities as prohibited uses of office. Section 36-14-4(a) provides that "[n]o elected or appointed state or municipal official shall, while serving as such, have any interest, financial or otherwise, direct or indirect, or engage in any business, employment transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties or employment in the public interest and of his responsibilities...