Advisory Opinion No. 2011-26

Re: Alice Brady

QUESTION PRESENTED

The Petitioner, a member of the North Providence Town Council, a municipal elected position, requests an advisory opinion regarding her ability to participate in certain aspects of the Town Council's review of the municipal budget, given the fact that her two sons serve in the respective positions of patrol officer and firefighter in the Town of North Providence.

RESPONSE

It is the opinion of the Ethics Commission that the Petitioner, a member of the North Providence Town Council, a municipal elected position, must recuse from the Town Council's review of items in the municipal budget that will impact her sons' terms of employment, compensation or benefits, but need not recuse from budgetary items that do not financially impact her sons, even though they may impact other police or fire department operations or personnel. Furthermore, the Petitioner is permitted to participate in the Town Council's decision-making relative to approving or rejecting the entire budget as a whole.

The Petitioner was elected last year to serve as a member of the North Providence Town Council ("Town Council"). Prior to her election, the Petitioner requested an advisory opinion from the Ethics Commission concerning her ability to serve on the Town Council given her status as a guidance counselor employed by the North Providence School Department, and given that her two sons were employed by the Town's fire and police departments. A.O. 2010-31. The Commission opined that the Code of Ethics did not prohibit her service, if elected, on the Town Council. Id. The opinion went on to offer general guidance as to the Petitioner's ability to participate in budgetary matters regarding the school department, fire department and police department, citing to previous advisory opinions in which public officials were instructed to recuse from budgetary line items that might impact themselves or their family members individually, but allowing participation in a vote to approve or reject a budget as a whole. Id. (citing A.O. 2009-12; A.O. 2007-30).

Since the issuance of that opinion and her election to the Town Council, the Petitioner has retired from her employment with the school department, although her sons continue to be employed by the Town, one as a "Patrol 3" for the police department and the other as a "Firefighter 1" for the fire department. In light of these facts and the recent submission to the Town Council of the Mayor's budget, the Petitioner now seeks more specific guidance as to her ability to participate in the Town Council's consideration of the budget as it pertains to the police and fire departments.

Commission Regulation 36-14-5004(b)(3), regarding participation in budgets, addresses the question raised by the Petitioner. It reads, in pertinent part:

(A) General Prohibition. No person subject to the Code of Ethics shall participate in discussion or decision-making relative to a budgetary line item that would address or affect the employment, compensation or benefits of any person within his or her family or a household member.

(B) Specific Line Items. Notwithstanding the prohibition set forth in subsection 3(A), a person subject to the Code of Ethics may, only in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion, participate in discussion or decision-making relative to a budgetary line item that addresses or affects the employment, compensation or benefits of any person within his or her family or a household member as a member of a significant and definable class of persons, and not individually or to any greater extent than any other similarly situated member of the class.

(C) Vote on Entire Budget. Notwithstanding the prohibition set forth in subsection 3(A), a person subject to the Code of Ethics may participate in discussion or decision-making relative to approving or rejecting the entire budget as a whole, provided that the person within his or her family or household member is impacted by the entire budget as a member of a significant and definable class of persons, and not individually or to any greater extent than any other similarly situated member of the class.

Regulation 36-14-5004(b)(3).

In representations made to the Commission Staff, the Petitioner has stated that she will recuse from participating in the review of any budgetary line items that would affect the terms of employment, compensation or benefits of her sons. Such matters include items pertaining to her sons' salaries, benefits, longevity, clothing allowances, etc. However, she asks whether the Code of Ethics permits her participation in the Town Council's discussion of items that, while not causing a financial impact on her sons, do impact other personnel and the police and fire department operations generally. The Petitioner provides as examples a long list of specific items ranging from the salaries of police and fire employees, other than patrol officers and firefighters, to such items as office supplies, service contracts, diesel fuel, safety programs and new equipment.

As is noted above, Regulation 5004's nepotism prohibitions apply to decisions that involve her sons directly or that will impact their terms of employment, compensation or benefits. The Petitioner has stated that she will recuse on any such matters. However, not every decision that relates to the police or fire department will have a corresponding financial impact on her sons. For example, a decision to purchase a new fire truck, or to fund the purchase of new police equipment, affects each respective department and the Town generally but does not impact the personal finances of any individual patrol officer or firefighter. Many of the budget items listed by the Petitioner appear to fall into this category, such as accreditation, office supplies, printing and postage, and equipment repair.

Some items are not as clear, such as "accumulated time payout" and "disability salaries." Similarly, the salaries of employees who are not patrol officers or firefighters may or may not be linked to or correspond with her sons' salaries. For example, a decision as to the salary range of a non-union police chief with a stand-alone contract would not appear to impact the salaries of unionized patrol officers subject to a collective bargaining agreement. However, with no specific information other than these general item names to guide our analysis, we are unable to determine whether or not any particular salary or budget item will impact her sons financially.

Accordingly, we decline to give an item-by-item opinion as to the propriety of the Petitioner's participation in Town Council decision-making. Instead, we caution the Petitioner to determine, as to each budget item, whether the Town Council's consideration and decision-making will affect either of her sons' terms of employment, compensation or benefits. If so, the Petitioner must recuse and file a conflict of interest statement with the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. If not, even though an item may impact other personnel or the police or fire department operations generally, the Petitioner is not prohibited from participation.

Finally, the Petitioner is advised that this opinion solely addresses the application of the Code of Ethics to the facts as represented by the Petitioner. This opinion does not address whether any other statutes, rulings, policies, charters, or ordinances prohibit such activities.

Code Citations:

R.I. Gen. Laws § 36-14-6

Commission Regulation 36-14-5004

Related Advisory Opinions:

A.O. 2010-31

A.O. 2009-12

A.O. 2007-46

A.O. 2007-33

A.O. 2007-30

A.O. 2000-61

A.O. 99-74

Keywords:

Budgets

Family: Public Employment

Recusal