Advisory Opinion No. 2011-12

Re: David A. D’Agostino

QUESTION PRESENTED

The Petitioner, a member of the Scituate Town Council, a municipal elected position, requests an advisory opinion regarding whether he can serve as Council President, Council Vice President, or Council President Pro Tempore given the fact that his son is an attorney at the law firm that serves as Town Solicitor.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Scituate Town Council, a municipal elected position, may serve as Council President, Council Vice President, or Council President Pro Tempore, notwithstanding the fact that his son is an attorney at the law firm that serves as Town Solicitor, provided that he recuses from participating in and voting on Town Council decisions that will financially impact his son.

The Petitioner represents that he has been a member of the Scituate Town Council since November 2006. He states that the law firm of Gorham & Gorham, Inc. served as the Town Solicitor (“Solicitor”) for the past several decades. He further states that his son, David M. D’Agostino, Esq., an attorney at Gorham & Gorham, often attends Town Council meetings serving as legal counsel to the Town Council.

The Petitioner informs that historically he has recused from Town Council matters regarding the selection and appointment of the Solicitor. Presently, the Petitioner seeks guidance as to whether his familial conflict with the Solicitor prevents him from serving as Council President, Council Vice President, or Council President Pro Tempore.

A person subject to the Code of Ethics 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. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the Petitioner 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. Section 36-14-7(a). Also, a person subject to the Code of Ethics may not use his public position to obtain financial gain, other than as provided by law, for himself or any member of his immediate family. Section 36-14-5(d).

Commission Regulation 36-14-5004 (“Regulation 5004”) contains specific provisions aimed at curbing nepotism. Pursuant to Regulation 5004(b)(2), a public official may not participate in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within his or her family, nor may he delegate such tasks to a subordinate. Regulation 5004(b)(2)(A) & (B). The phrase “any person within his or her family” expressly includes “son.” Regulation 5004(a)(2).

The Commission has declined to adopt a blanket or absolute prohibition against one family member serving in a department or agency in which another family member has supervisory responsibilities. Rather, the Commission generally has taken the position that a public official or employee serving in a supervisory capacity will satisfy the requirements of the State’s Code of Ethics by recusing from participation in matters directly affecting his or her family member. A.O. 2002-48.

Here, the Petitioner notes that he has served as a general member of the Town Council since 2006, and has properly recused from Town Council matters regarding the selection and appointment of the Solicitor as required by the Code of Ethics. The applicable provisions of the Code apply equally to members and officers of a public body. Accordingly, the Petitioner’s elevation to Council President, Council Vice President, or Council President Pro Tempore will not complicate his obligations under the Code of Ethics. Therefore, it is the opinion of the Ethics Commission that the Petitioner may serve as Council President, Council Vice President, or Council President Pro Tempore provided that he continues to recuse from participating in and voting on Town Council decisions that will financially impact his son. Notice of recusal should be filed with the Ethics Commission and the Scituate Town Council in accordance with section 36-14-6.

Code Citations:

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-6

§ 36-14-7(a)

Commission Regulation § 36-14-5004

Related Advisory Opinions:

G.C.A. 2009-1

A.O. 2002-48.

Keywords:

Nepotism