Advisory Opinion No. 2014-23 Rhode Island Ethics Commission Advisory Opinion No. 2014-23 Approved: August 19, 2014 Re: Joyce L. Stevos, Ph.D. QUESTION PRESENTED: The Petitioner, a member of the Rhode Island Board of Education – Council on Elementary and Secondary Education, a state appointed position, requests an advisory opinion regarding whether she may simultaneously serve as a board member of a charter school and whether she may participate in Board of Education actions that directly impact that charter school. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Rhode Island Board of Education – Council on Elementary and Secondary Education, a state appointed position, is neither prohibited by the Code of Ethics from simultaneously serving as a board member of a charter school nor is she prohibited from participating in Board of Education actions that directly impact that charter school. The Petitioner was appointed by Governor Lincoln D. Chafee in June 2014 to serve as a member of the Rhode Island Board of Education – Council on Elementary and Secondary Education[1] (“CESE”). She represents that CESE has supervisory powers over the Rhode Island Department of Elementary and Secondary Education (“RIDE”). She states that CESE appoints the Commissioner of Education for RIDE (“Commissioner”) and delegates to the Commissioner the authority to hire and manage RIDE’s staff. The Petitioner informs that all charter schools, which are considered public schools under state law, are under the sole jurisdiction of CESE.[2] Charter applications are extensive and must first be submitted to the Commissioner for review. Upon a recommendation from the Commissioner, CESE may award a charter to a school for a period of up to five years. Throughout the duration of a charter’s term RIDE’s Office of Transformation, acting on CESE’s behalf, collects evidence for performance reviews. This rigorous performance review process includes analysis of student outcome data, site visits, a review of key organizational outcomes, identifying mission-specific goals and submitting annual reports to RIDE. At the end of the charter’s term, this review process could result in the renewal or non-renewal of a charter. The Petitioner represents that she is also a member and president of the board of the Trinity Academy for the Performing Arts (“TAPA”), a charter school for grades 7-12 that is located in Providence. She states that she has served as the president of TAPA’s board since its incorporation in 2009. She represents that she serves TAPA as a volunteer and does not receive any money from TAPA. She informs that CESE will consider whether to renew TAPA’s charter this fall. The Petitioner seeks guidance as to whether she may participate in CESE’s review of TAPA’s charter, given her membership on TAPA’s board. Under the Code of Ethics, a public official is prohibited 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. R.I. Gen. Laws § 36-14-5(d). Additionally, a public official must recuse herself from participation when her business associate or employer appears or presents evidence or arguments before her state or municipal agency. Commission Regulation 36-14-5002(a)(2) (“Regulation 5002”); section 36-14-5(f). Finally, a public official shall not have any interest, financial or otherwise, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of her duties or employment in the public interest. Section 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). A business is defined as “a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, trust or any other entity recognized in law through which business for profit or not for profit is conducted.” Section 36-14-2(2). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7). In prior advisory opinions, the Commission has consistently concluded that the Code of Ethics does not consider the relationship between a public official and a public body to be that of “business associates.” See e.g. A.O. 2012-1 (opining that a member of the Rhode Island Transportation Advisory Committee (“TAC”), who was also a member of the Rhode Island Board of Governors for Higher Education, could participate in TAC discussions and votes concerning funding for institutions subject to the jurisdiction for the Board of Governors because under the Code of Ethics neither the Board of Governors nor TAC were considered “businesses”); A.O. 2011-29 (opining that a member of the Portsmouth Planning Board, who was also a civil engineer for the Rhode Island Department of Transportation (“DOT”), could participate in the Planning Board’s consideration of a development proposal, notwithstanding that in her capacity as a DOT engineer she had been reviewing the same property to ensure that the state’s property interests were protected). See also A.O. 2013-3; A.O. 2010-57; A.O. 2008-50; A.O. 2007-24 A.O. 2002-55; A.O. 2002-1. The Commission has also specifically found that a charter school, as a public school, is not a “business” as the term is defined in the Code of Ethics. A.O. 2007-24 (opining, inter alia, that the Chair of the Cranston School Committee, who was also a member of the Board of Directors of the New England Laborers’/Cranston Public Schools Construction Career Academy, was not required to recuse from participating and voting on School Committee matters involving the Construction Academy because as a charter school it was a public school and, therefore, was not considered to be a “business” under the Code of Ethics). In the present matter, the central question is whether the Code of Ethics prohibits the Petitioner from taking action as a member of one public entity that will result in a financial impact to another public entity of which she is also a board member. Under the Code of Ethics, neither CESE nor TAPA is considered to be a “business.” Therefore, the Petitioner’s memberships on CESE and TAPA do not constitute business associations. Accordingly, absent any other relevant fact that would implicate the provisions of the Code of Ethics, it is the opinion of the Ethics Commission that the Petitioner, a member of the Board of Education – Council on Elementary and Secondary Education, is neither prohibited by the Code of Ethics from simultaneously serving as a board member of TAPA nor is she prohibited from participating in CESE actions that directly impact TAPA. Notwithstanding the Code of Ethics, the Petitioner is advised to consider whether her affiliation with TAPA prevents her from being able to participate in TAPA’s charter renewal application in a fair and objective manner and whether her participation would create an appearance of impropriety. The Petitioner is also cautioned that if any matters should come before her as she is carrying out her duties in either of her public roles that may present any other potential conflict of interest that is not otherwise contemplated in this advisory opinion, or circumstances in which it is reasonably foreseeable that there will be a financial impact upon the Petitioner personally, she should either request further advice from this Commission or exercise the recusal provision found at section 36-14-6. This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any decision by RIDE or any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations: § 36-14-2(2) § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-5(f) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5002 Related Advisory Opinions: A.O. 2013-3 A.O. 2012-21 A.O. 2012-1 A.O. 2011-29 A.O. 2010-57 A.O. 2008-50 A.O. 2007-24 A.O. 2002-55 A.O. 2002-1 Keywords: Charter Schools Dual Public Roles