Advisory Opinion No. 2012-8 Advisory Opinion No. 2012-8 Re: Peter D. Ruggiero, Esq. QUESTION PRESENTED The Petitioner, the Town Solicitor for the Town of Charlestown, on behalf of the Charlestown Town Council, a municipal elected body, requests an advisory opinion regarding whether and how the Town Council may consider and vote on matters pertaining to a lawsuit against the Town of Charlestown and certain other individuals, given that three (3) of the five (5) members of the Town Council are parties to the lawsuit. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Charlestown Town Council may consider and vote on matters pertaining to a lawsuit against the Town of Charlestown and certain other individuals, in which three (3) current Town Council members are parties, according to the following procedure: 1) Town Council member Lisa DiBello, the plaintiff in this lawsuit, is required to recuse from all matters pertaining to her lawsuit; 2) Town Council members Marjorie F. Frank and Gregory J. Avedisian, both named as defendants in their individual and official capacities, may participate in the Town Council’s consideration of Ms. DiBello’s lawsuit. However, Ms. Frank and Mr. Avedisian are cautioned that, if matters relating to this lawsuit arise that will have a direct financial impact upon either of them, they should seek further guidance from the Commission. The Petitioner is the Town Solicitor for the Town of Charlestown (“Town”), writing on behalf of the Charlestown Town Council (“Town Council”). He represents that sitting Town Council member Lisa DiBello (“DiBello”) filed a lawsuit on January 23, 2012 against the Town and several current and former Town officials, including current Town Council members Marjorie F. Frank (“Frank”) and Gregory J. Avedisian (“Avedisian”), in both their official and individual capacities. The dispute revolves around Ms. DiBello’s termination as the Parks and Recreation Director for the Town in May of 2010. The Petitioner advises that the remaining two (2) members of the Town Council are not named in Ms. DiBello’s complaint, were not on the Town Council at the time of her termination, and do not appear to have any other conflicts preventing their participation in this matter. Ms. DiBello’s complaint alleges violations of the Rhode Island Fair Employment Practices Act (R.I. Gen. Laws §§ 28-5-1 to -42); the Rhode Island Civil Rights Act (R.I. Gen. Laws §§ 42-112-1 to -2); and the Rhode Island Whistleblowers’ Protection Act (R.I. Gen. Laws §§ 28-50-1 to -9). Ms. DiBello seeks reinstatement and monetary damages. The Petitioner represents that Ms. DiBello has been recusing from matters related to this lawsuit because she is the plaintiff. He also informs that Ms. Frank and Mr. Avedisian have been recusing since first seeking advice from the Commission in May of 2011, regarding whether they could participate in the Town Council’s consideration of agenda items relating to the indemnification of themselves or other Town officials named as defendants in Ms. DiBello’s Charge of Discrimination before the Rhode Island Commission for Human Rights. The Commission issued Advisory Opinions 2011-37 and 2011-38 on August 16, 2011 to Ms. Frank and Mr. Avedisian respectively. There, the Commission opined that Ms. Frank and Mr. Avedisian were each required to recuse from participation and vote in the Town Council’s consideration of agenda items relating to the indemnification of him or herself, or the other Town officials named as defendants in Ms. DiBello’s lawsuit. The Petitioner states that presently, absent guidance from the Commission, the Town Council is unable to discuss this lawsuit. He informs that the Town Council must be able to consider and confer with legal counsel regarding pleadings, discovery and motion practice. Given the above representations, the Petitioner asks whether and how the Town Council may consider and vote on matters pertaining to Ms. DiBello’s lawsuit, given that Ms. DiBello, Ms. Frank and Mr. Avedisian are all parties to the lawsuit. Under the Code of Ethics, a public official may not participate in any matter in which he or she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his or 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 he or she, any person within his or her family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. Section 36-14-7(a). Additionally, the Code prohibits a public official from using his or her public office or confidential information received through his or her public office to obtain financial gain for him or herself, his or her family, business associate, or any person by which he or she is employed or whom he or she represents. Section 36-14-5(d). As an initial matter, the Commission agrees that the Code of Ethics requires Ms. DiBello to recuse from any matters pertaining to her lawsuit, given that she has a direct financial interest in the outcome of the case. With respect to Ms. Frank and Mr. Avedisian, the nature of their conflict in this matter is separate from the questions presented in Advisory Opinions 2011-37 and 2011-38, which related to the indemnification of litigation costs. Significantly, the Commission did not previously opine that Ms. Frank and Mr. Avedisian were required to recuse from all issues pertaining to Ms. DiBello’s lawsuit; rather the Commission found that they were required to recuse from the agenda item that related to indemnification because such official action would clearly result in a direct financial impact. Although Ms. Frank and Mr. Avedisian are named in their official and individual capacities, the Town Council’s consideration of matters pertaining to this lawsuit is not likely to result in a direct financial impact upon either of them at this stage of litigation. Many of the issues to be considered by the Town Council are not personal to the defendants but are strategic decisions made in their official capacities, on behalf of the Town. Furthermore, it would be an absurd result if plaintiffs could automatically disqualify public officials from discussions concerning lawsuits against their agencies simply by naming them in their individual capacities. See Andrade v. Perry, 863 A.2d 1272 (R.I. 2004) (holding that a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office); A.O. 2011-39 (opining that a Providence City Council member, who was also a member of the Providence Board of Contract and Supply (“Board”), could participate in the Board’s decision to rescind a contract awarded to So Fresh and So Clean, LLC (“SFSC”), notwithstanding that SFSC had filed a lawsuit naming all of the Providence City Council members as defendants in their official capacities). For all of these reasons, it is the opinion of the Ethics Commission that, at present, Marjorie F. Frank and Gregory J. Avedisian are not required to recuse from participating in the Town Council’s consideration of matters pertaining to the litigation of Ms. DiBello’s lawsuit. However, at some future date, should a matter relating to the litigation arise that will have a clear and direct financial impact on Ms. Frank and/or Mr. Avedisian, such as a vote to indemnify their personal legal expenses, Ms. Frank and Mr. Avedisian should seek additional advice from the Commission. Prior to each such participation, Ms. Frank and Mr. Avedisian shall file a conflict of interest statement in accordance with § 36-14-6, disclosing their interest in the matter and affirming that despite this interest they are willing and able to participate fairly, objectively and in the public interest. Additionally, if either Ms. Frank or Mr. Avedisian feel that they can no longer be impartial, they may exercise the recusal provision found at § 36-14-6 or seek further advice from the Commission. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2011-39 A.O. 2011-38 A.O. 2011-37 A.O. 2003-61 Other Relevant Authorities: Andrade v. Perry, 863 A.2d 1272 (R.I. 2004). Keywords: Litigation Recusal  On March 1, 2012, the Commission received affidavits from Marjorie F. Frank and Gregory J. Avedisian, in which Ms. Frank and Mr. Avedisian both attested that, if permitted, they “can and will participate in this matter fairly and equitably.”  Ms. Frank and Mr. Avedisian should complete Option B in paragraph 3 of the § 36-14-6 recusal form, found at: http://www.ethics.ri.gov/education/recusalForm.pdf.