Advisory Opinion No. 2012-10 Advisory Opinion No. 2012-10 Re: Lisa DiBello QUESTION PRESENTED: The Petitioner, a member of the Charlestown Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits her participation in the Town Council’s consideration of the Town Administrator’s recent job performance, given that she has a lawsuit pending in Superior Court in which she has named the Town Administrator, among others, as a defendant in both his individual and official capacities. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a member of the Charlestown Town Council, a municipal elected position, from participating in the Town Council’s consideration of the Town Administrator’s recent job performance, notwithstanding that she has a lawsuit pending in Superior Court in which she has named the Town Administrator, among others, as a defendant in both his individual and official capacities. The Petitioner is a member of the Charlestown Town Council, having been elected in November 2010. She informs that prior to her election she served as the Director of Parks and Recreation for the Town of Charlestown (“Town”) from 1988 until her termination in May 2010. She represents that the Town Charter empowers the Town Council to appoint the Town Administrator, who shall execute and administer the government of the Town under the authority of the Town Council. She further states that the Town Administrator serves at the pleasure of the Town Council. The Petitioner states that the current Town Administrator is William DiLibero. She informs that Mr. DiLibero was the Town Administrator in May 2010 and she represents that it was upon his recommendation that the then Town Council voted to terminate her employment. In January 2012, the Petitioner filed a lawsuit against the Town and various Town officials, including Mr. DiLibero in his official and individual capacities, alleging that she was wrongfully terminated.[1] The Petitioner states that any concerns with respect to the recent job performance of Mr. DiLibero as the Town Administrator stem from actions occurring only during her tenure as a Town Council member, since November 2010. She further represents that the issues related to the Town Administrator’s job performance have no relation to the facts alleged in her lawsuit and will not have a direct impact on the litigation of her lawsuit. The Petitioner informs that on April 9, 2012, she recused from an executive session discussion regarding the Town Administrator in an abundance of caution and pending the issuance of the instant advisory opinion. She informs that this agenda item was continued to April 19, 2012. Given the above representations, the Petitioner seeks advice as to whether she may participate in the Town Council’s consideration of the Town Administrator’s job performance, given that she has named the Town Administrator, among others, in her wrongful termination lawsuit pending against the Town. Under 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). A substantial conflict of interest exists if an official has reason to believe or expect that she, any person within her family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Additionally, the Code prohibits a public official from using her public office or confidential information received through her public office to obtain financial gain for herself, her family, her business associate, or any person by which she is employed or whom she represents. Section 36-14-5(d). The Commission recently issued Advisory Opinion 2012-8 to the Charlestown Town Solicitor, on behalf of the Charlestown Town Council, regarding whether and how the Town Council may consider and vote on matters pertaining to this Petitioner’s wrongful termination lawsuit, given that this Petitioner and two (2) other Town Council members are parties to the lawsuit. There, the Commission specifically concluded that this Petitioner, as the plaintiff in the lawsuit, is required to recuse from any matters pertaining to her lawsuit because she has a direct financial interest in the outcome of the case. However, the Commission determined that the two (2) Town Council members named by this Petitioner as defendants, in both their individual and official capacities, are not required to recuse from these matters because their participation is not likely to result in a direct financial impact upon either of them at this stage of litigation. The Commission noted that many of the issues to be considered by the Town Council are not personal to the defendants but are strategic decisions to be made in their official capacities, on behalf of the Town. In the present matter, in contrast to Advisory Opinion 2012-8, the Petitioner represents that the issues up for discussion relative to the Town Administrator are unrelated to the factual allegations of the Petitioner’s lawsuit. As such, her participation in the Town Council’s consideration of the Town Administrator’s recent job performance is not likely to result in a direct financial impact upon the Petitioner or her Superior Court lawsuit. See also A.O. 2012-2 (opining that an Exeter Town Council member, who was also a licensed firearms dealer, could participate in the Town Council’s discussion and vote on a resolution asking the General Assembly to change the state law regarding municipal licensing of concealed weapons because his business as a firearms dealer was not directly affected by the ability of the Town to issue permits to carry a concealed weapon); A.O. 2010-59 (opining that a Tiverton Town Council member could participate in Town Council discussions and voting relative to litigation, taxation and personnel issues, notwithstanding his prior involvement in tax appeals and litigation against the Town and certain of its officials). Accordingly, the Commission finds that, absent any other relevant fact that would implicate provisions of the Code of Ethics, there is no direct financial nexus linking the Town Council’s consideration of the Town Administrator’s recent job performance and the Petitioner’s wrongful termination lawsuit against the Town and various other Town officials. For all of these reasons, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner’s participation in the Town Council’s consideration of the Town Administrator’s recent job performance, notwithstanding that she has a lawsuit pending in Superior Court in which she has named the Town Administrator, among others, as a defendant in both his individual and official capacities. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) Related Advisory Opinions: A.O. 2012-8 A.O. 2012-2 A.O. 2011-38 A.O. 2011-37 A.O. 2010-59 Keywords: Litigation Recusal [1] See related Advisory Opinions 2011-37, 2011-38 and 2012-8.