Advisory Opinion No. 2012-35

Re: John M. Karmozyn, Jr.

QUESTION PRESENTED:

The Petitioner, a member of the Burrillville School Committee, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from serving on the Burrillville School Committee, given that his spouse is also a member of the School Committee.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Burrillville School Committee, a municipal elected position, is not prohibited by the Code of Ethics from serving on the Burrillville School Committee, notwithstanding that his spouse is also a member of the School Committee.

On November 6, 2012, the Petitioner was elected to serve a four (4) year term on the Burrillville School Committee (“School Committee”). His spouse is also a member of the School Committee, having been first elected in 1998. He states that his spouse’s current term ends in November, 2014. The Petitioner seeks advice as to whether he and his spouse may simultaneously serve on the School Committee. He also seeks guidance as to whether he may vote for his spouse to serve as chair of the School Committee, given that the position carries with it an additional stipend of $500.

Under the Code of Ethics, a public official 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 and employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A public official will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. Section 36-14-7(a). A public official is also prohibited from using his public position or confidential information received through his position to obtain financial gain, for himself or his family or business associates, other than that provided by law. Section 36-14-5(d).

Additionally, the general nepotism provision of the Code of Ethics requires that

No person subject to the Code of Ethics shall participate in any matter as part of his or her public duties if he or she has reason to believe or expect that any person within his or her family, or any household member, 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.

Commission Regulation 36-14-5004(b)(1) (“Regulation 5004”).

Finally, Commission Regulation 36-14-7004 (“Regulation 7004”), adopted in 2008 and entitled “Officers of Public Agencies,” provides:

Notwithstanding any other provision of the Code of Ethics, it shall not be a violation of this chapter for an appointed or elected member of a state or municipal agency to participate in a vote of the agency during an open meeting to elect him/herself to a position of officer of that agency, provided that if such position carries with it any form of compensation, reimbursement or stipend that is greater than that provided to non-officer members, such additional compensation, reimbursement or stipend must either have been in effect at the time of the vote pursuant to a valid provision of constitution, statute, regulation, charter or ordinance, or be waived.

In the present matter, there is no provision in the Code of Ethics that would prohibit the Petitioner and his spouse from simultaneously serving on the School Committee. Given that each spouse must be elected independently by the qualified electorate, there is no evidence that one spouse could participate or improperly assist the other spouse in obtaining a position on the School Committee. See A.O. 2000-72 (opining that no existing statutes or regulations prohibited spouses from serving simultaneously on the Glocester School Committee absent some showing that one spouse’s service inherently or unavoidably would affect the interests of the other spouse, which was not the case there); A.O. 98-132 (opining that the Code of Ethics did not prohibit three brothers from serving simultaneously on the Board of Utility Commissioners for the Pascoag Fire District).

Furthermore, Regulation 5004(b)(1) is not implicated here because both the Petitioner and his spouse will be acting in their public capacities, with neither spouse supervising the other and no reasonably foreseeable financial benefit resulting for either spouse. A.O. 2010-5 (opining that the petitioner, a member of the Tiverton Budget Committee, was not prohibited by the Code of Ethics from participating in and performing his public duties when the School Committee and Budget Committee conducted joint meetings or workshops and when the School Committee presents its proposed annual budget to the Budget Committee, notwithstanding the fact that his spouse was a member of the Tiverton School Committee). 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.

With respect to electing officers of the School Committee, Regulation 7004 would permit the Petitioner to vote during an open meeting to elect himself to the position of chairperson and accept any additional stipend that position carries, provided that the stipend was in effect at the time of the vote pursuant to a valid provision of constitution, statute, regulation, charter or ordinance. If, however, the additional stipend was not in effect at the time of the vote, Regulation 7004 would require the Petitioner to waive the additional stipend. At the time Regulation 7004 was drafted, the Commission did not envision spouses serving on the same public board together, although there is no prohibition to such simultaneous service. Thus, if Regulation 7004 would permit the Petitioner to vote for himself to serve in a position that carries an additional stipend, it logically follows that, consistent with Regulation 7004, the Petitioner could vote for his spouse to serve in such a position provided that the additional stipend was in effect at the time of the vote pursuant to a valid provision of constitution, statute, regulation, charter or ordinance.

Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not prohibited from serving on the School Committee, notwithstanding that his spouse is also a member of the School Committee. This opinion solely addresses the Code of Ethics.

This opinion does not address whether the School District’s bylaws, the Town’s charter, or any other statutes, regulations, ordinance, rulings or policies prohibit such simultaneous service.

Code Citations:

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-7(a)

Commission Regulation 36-14-5004

Commission Regulation 36-14-7004

Related Advisory Opinions:

A.O. 2010-5

A.O. 2000-72

A.O. 98-132

Keywords:

Family