Advisory Opinion No. 2011-8 Advisory Opinion No. 2011-8 Re: Robert Coulter QUESTION PRESENTED The Petitioner, a member of the Tiverton Town Council, a municipal elected position, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places on him regarding his participation in Town Council discussion, consideration and vote involving a funding dispute between the Town of Tiverton and the Tiverton School Committee, given that his spouse is a member of the School Committee. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a member of the Tiverton Town Council, a municipal elected position, is not prohibited from participating in and performing his public duties as they relate to a funding dispute between the Town of Tiverton and the Tiverton School Committee, notwithstanding the fact that his spouse is a member of the School Committee. The Petitioner is a member of the Tiverton Town Council (Town Council). The Petitioner’s spouse is a member of the Tiverton School Committee (School Committee). The Petitioner states that the Tiverton Town Treasurer (Treasurer) determined that the Tiverton School Department (School Department) received more funds than it was entitled to from the Town of Tiverton (Town) in the fiscal year ending June 30, 2010. Accordingly, the Treasurer, with the support of the Town Solicitor and Town Council, adjusted the relevant accounts and reclaimed the funds from the School Department and returned them to the general town reserves. The Petitioner informs that the School Committee Chairperson, upon learning of the Treasurer’s decision, consulted the School Committee’s attorney who disagreed with the decision of the Treasurer, and requested a hearing before the Rhode Island Department of Education. According to the Petitioner, a hearing officer has been assigned but no other formal action has been taken. The Petitioner states that only the Treasurer has been named as a respondent to the action at this time, however, he anticipates that the School Committee and Town Council will eventually become adverse parties in litigation of some sort, which would position both spouses as participants in the funding dispute, each in their respective official capacities, as constituent members of dueling public bodies. Given this set of facts, the Petitioner now asks what prohibitions the Code of Ethics places on him as he carries out his official duties as a member of the Town Council as it relates to the funding dispute, given that his spouse is a member of the School Committee. Specifically, the Petitioner asks whether he may: 1) fully participate in Town Council discussion, consideration and voting with regard to the funding dispute; 2) appear in his official capacity at any meetings of, or with, the School Committee where the funding dispute or other official business is discussed; and 3) attend and participate in executive session discussions regarding the funding dispute or any potential litigation that may result from said dispute. Under the Code of Ethics, a public official may not participate in any matter in which he has a financial interest 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 he has reason to believe or expect that he, 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. R.I. Gen. Laws § 36-14- 7(a). The official is further prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate or a family member. R.I. Gen. Laws § 36-14-5(d). Additionally, Commission Regulation 36-14-5002(1) requires a public official to recuse himself from participation and notify his board or agency in writing when his spouse appears before his board or agency. Finally, Commission Regulation 36-14-5004(b)(1), regarding “Nepotism Generally” requires that “no person subject to the Code of Ethics shall participate in any matter as part of . . . his public duties if . . . he . . . has reason to believe or expect that any person within . . . his . . . family . . . is a party to or a participant in such matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage, as the case may be.” Id. As this Petitioner represents that neither he nor his spouse have any personal financial interest in the funding dispute, the central focus of the Petitioner’s request becomes the question of whether or not either Regulation 5002(1) or Regulation 5004(b)(1) apply to instances in which his spouse either “appears before . . . his . . . board/agency” or “is a party to or participant” in “any matter” which comes before him “as part of . . . his . . . public duties.” Id.In 2010, the Commission issued a similar advisory opinion to this Petitioner regarding the application of the Code of Ethics when his duties as member of the Tiverton Budget Commission, a municipal elected position, intersected with the School Committee, given that his spouse was a member of the School Committee. See A.O. 2010-5. In relying on prior advisory opinions, the Commission opined that Regulation 5002(1) required recusal when the public official’s family member was either appearing in his or her private capacity, appearing as a public employee subordinate to the public official or the entity of which the official was a member, or had a private financial interest at stake. See, e.g., A.O. 2006-18 (opining that a member of the Barrington Town Council must recuse in matters relating to the Town’s acquisition of parkland for the potential use as baseball fields by the Barrington Little League if “her spouse makes an appearance before the Council” on said matters, given his position as coach and board member of the Little League); A.O. 2004-14 (opining that a member of the Tiogue Fire District Board must recuse, pursuant to Regulation 5002, whenever her spouse, who is a firefighter in the district, appears before the District Board); A.O. 2002-53 (opining that a potential part-time clerk for the Hopkins Hill Fire District Tax Collector may serve in that position, but would be required to recuse from participation whenever her spouse appears before the Fire District Board); A.O. 99-142 (opining that the Chair of the Jamestown Planning Commission may not participate, pursuant to Regulation 5002, in a decision about a proposed subdivision when the matter was being presented by her spouse acting in his private capacity, unpaid, on behalf of a third person, even though he would not be affected financially by any such decision, because he was appearing before the Petitioner). Relying on these prior opinions, the Commission opined that, barring any other additional facts which would implicate the prohibitions found in the Code of Ethics, the Petitioner was not prohibited from participating in an annual joint financial Town Council/School Committee/Budget Committee workshop because both the Petitioner and his spouse were acting in their public capacities, with neither individual having supervisory discretion over the other, nor either individual having any personal financial interests at stake. A.O. 2010-5. In addition, in his prior advisory opinion, the Commission opined that Regulation 5004(b)(1) did not prohibit the Petitioner from carrying out his duties as a Budget Committee member in either the joint workshop situation or in the School Committee’s presentation of its budget to the Budget Committee, given that both he and his spouse would be acting in their public capacities, with neither spouse supervising the other and no reasonably foreseeable financial benefit resulting for either spouse. The Commission reasoned that to find otherwise would entirely disable those public officials who serve concurrently on the same entity with their spouses or other family members from fulfilling their public duties. See A.O. 2006-38 (regarding spouses simultaneously serving as Cumberland School Committee members); A.O. 2000-72 (opining that a teacher at the North Scituate Elementary School was not prohibited from running for the Glocester School Committee, notwithstanding that her husband was already a member of the Glocester School Committee); A.O. 98-132 (advising three brothers that they could simultaneously serve on the Board of Utility Commissioners for the Pascoag Fire District); and A.O. 96-117 (regarding spouses simultaneously serving as North Kingstown School Committee members). Similarly, in the instant matter, based upon the Petitioner’s representations that neither he nor his spouse have any personal financial interest in the funding dispute and that all communications between the Town Council and the School Committee would occur while the Petitioner was serving in his public capacity as a member of the Town Council, it is the opinion of the Ethics Commission that, barring any other additional facts which would implicate the prohibitions found in the Code of Ethics, the Petitioner is not prohibited from: 1) participating in Town Council discussion, consideration and voting when such actions relate to the funding dispute; 2) appearing in his official capacity at any meetings of, or with, the School Committee where the funding dispute or other official business is discussed; and 3) attending and participating in executive session discussions regarding the funding dispute or any potential litigation that may result from said dispute. Finally, the Petitioner is advised that this opinion solely addresses whether the Code of Ethics prohibits him, as a member of the Town Council, from participating in these matters in which his spouse, who is also a municipal elected official, participates. This opinion does not address whether any other statutes, rulings, policies, charters, or ordinances prohibit such activity. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) Commission Regulation 36-14-5002 Commission Regulation 36-14-5004 Related Advisory Opinions: A.O. 2010-5 A.O. 2009-20 A.O. 2006-38 A.O. 2006-18 A.O. 2004-14 A.O. 2002-53 A.O. 99-142 A.O. 98-132 A.O. 96-117 Keywords: Family