Advisory Opinion No. 2011-37 Advisory Opinion No. 2011-37 Re: Marjorie F. Frank QUESTION PRESENTED The Petitioner, a member of the Charlestown Town Council, a municipal elected position, requests an advisory opinion regarding whether she is required to recuse from the Town Council’s consideration of indemnification requests by various Town elected and appointed officials, including the Petitioner, relating to charges of discrimination pending before the Rhode Island Human Rights Commission. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Charlestown Town Council, a municipal elected position, is required to recuse from the Town Council’s consideration of indemnification requests by various Town elected and appointed officials, including the Petitioner, relating to charges of discrimination pending before the Rhode Island Human Rights Commission. The Petitioner is a member of the Charlestown Town Council (“Town Council”). She informs that on March 18, 2011, Lisa DiBello, a former Charlestown (“Town”) employee and current member of the Town Council, filed a Charge of Discrimination with the Rhode Island Human Rights Commission (“the charge”) against the Town, the Petitioner and other former and current Town elected and appointed officials (“Town officials”). The Petitioner informs that the following item was on the Town Council’s July 11, 2011 agenda: “Indemnification request from the Town Administrator to secure private attorney representation for Richard Sartor, Chief Jack Shippee, Stephen McCandless, William DiLibero, Gregory J. Avedisian and Marjorie F. Frank as named parties in a Human Rights Commission Charge of Discrimination filed by Lisa DiBello.” She advises that Rhode Island General Laws § 45-15-16 and the Town Code of Ordinances Art. II §§ 30-2 to 30-4 both provide for the indemnification of Town elected and appointed officials and employees, under certain circumstances, from all loss, cost, damage and expense, including legal fees and court fees, if the elected and appointed officials or employees were acting within the scope of their official duties or employment. Cognizant of a potential conflict of interest, the Petitioner informs that she has been recusing from the indemnification matter each time it appeared on the agenda. Based on the above representations, the Petitioner seeks guidance from the Ethics Commission as to whether she is required to recuse from all Town Council matters involving the issue of indemnification relative to the charge, given that her official action may result in a financial benefit or detriment to herself. Pursuant to the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). An official will have an interest in substantial conflict with her official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by reason of her official activity, to the official, a family member, a business associate, an employer or any business which the public official represents. Section 36-14-7(a). Furthermore, a public official may not use her public office or confidential information received through her office to obtain financial gain, other than that provided by law, for herself, her family members, her employer or any business associate. Section 36-14-5(d). In a somewhat analogous advisory opinion, the Tiverton Town Council sought advice relating to how to determine if five (5) of its seven (7) members were entitled to be reimbursed by the Town for their individual legal expenses incurred in challenging an effort to organize a recall election. A.O. 2003-61. As an initial matter, the Commission opined that no individual Council member could participate in the Council’s consideration to reimburse his or her own, individual legal expenses. Id. The Commission also opined that the Council’s determination of whether to reimburse these expenses was common to each of the five (5) members seeking reimbursement, given that the Council’s decision on these common issues as to one (1) member would be applied consistently to each of the other four (4) similarly situated members. Id. Accordingly, the Commission concluded that an individual Council member’s participation and vote on these common issues, even as applied to another Council member’s legal bill, was an official action that was likely to result in a financial benefit or detriment to the voting member when the issue of his or her own legal bill was raised. Id. See also A.O. 2006-31 (opining that an Exeter Town Council member, who was charged along with two other Council members with violating the town charter, could appear before the Town Council to defend himself, but was required to recuse from participating in the Council’s consideration of the complaints as related to the two similarly situated Council members facing the same charges); see generally G.C.A. 2009-2 (Public Official’s Actions involving their own Stipends, Salaries, Compensation or Benefits). In the present matter, it is clear that the Petitioner cannot participate in the Town Council’s consideration of whether to authorize the indemnification of her expenses related to the defense of the charge. Such action would violate both sections 5(a) and 5(d) of the Code, which prohibit a public official from taking official action or using her public office to derive a financial gain. Furthermore, irrespective of whether the agenda item is consolidated for the benefit of all the named defendants or separated into single items for each named defendant, the Petitioner’s participation and vote on these common issues, even as applied to another defendant’s request for indemnification, is an official action that is likely to result in a financial benefit or detriment to herself when the issue of her indemnification is raised. Accordingly, similar to Advisory Opinion 2003-61, it is the opinion of the Ethics Commission that the Petitioner is required to recuse from participation and vote in the Town Council’s consideration of any agenda items relating to the indemnification of herself or the other Town officials named as defendants in the charge. Notice of recusal should be filed in accordance with section 36-14-6.[1] The Petitioner has further inquired as to whether she can participate in the Town Council’s consideration of other unspecified employment disputes that are unrelated to the charge filed by Ms. DiBello, but that involve similar issues such as discrimination, unfair or unequal treatment, and favoritism or wrongful conduct by supervisors over subordinates. The Commission applies the provisions of the Code of Ethics to specific factual circumstances presented, and it cannot opine on hypothetical situations. Accordingly, the Petitioner is encouraged to seek further advice from the Commission concerning her ability to participate in specific matters that come before the Town Council as those matters arise. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: G.C.A. 2009-2 A.O. 2006-31 A.O. 2006-30 A.O. 2006-29 A.O. 2003-61 Keywords: Indemnification Recusal [1] The Petitioner initially sought to invoke the Rule of Necessity based on her representation that she, Mr. Avedisian (a co-respondent), and Ms. DiBello (the complainant), have all been recusing from the indemnification agenda item. The Commission has recognized a “Rule of Necessity” exception in situations where recusals would inhibit necessary governmental processes, such as where the majority of a public body’s members must recuse themselves and a resulting failure of a quorum renders the entity unable to act. However, absent the Commission’s determination that a majority of the Town Council members are required to recuse from the indemnification agenda item, the Commission is unable to authorize the Rule of Necessity at this time. The Town Council may provide further information to the Commission regarding a quorum problem in the future.