Advisory Opinion No. 2015-14 Approved: March 24, 2015 Re: Marjorie McBride QUESTION PRESENTED: The Petitioner, a member of the Bristol Warren Regional School Committee, a municipal elected position, who is also an alternate member of the Bristol Juvenile Hearing Board, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits her simultaneous service in both positions. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Bristol Warren Regional School Committee, a municipal elected position, who is also an alternate member of the Bristol Juvenile Hearing Board, a municipal appointed position, is not prohibited by the Code of Ethics from simultaneously serving in both positions.[1] The Petitioner is a member of the Bristol Warren Regional School Committee (“School Committee”), having served continuously in that position since her first election in 2000. The School Committee has nine members, six from Bristol and three from Warren, who are elected by each town on a non-partisan basis to four-year terms. She represents that, as a School Committee member, she is informed of disciplinary incidents in the Bristol Warren Regional School District (“School District”) and may participate as a member of a sub-committee to deal with disciplinary issues that the Superintendent believes warrant a hearing. The Petitioner states that she is also an alternate member of the Bristol Juvenile Hearing Board (“Hearing Board”), to which she was first appointed in May 2011. The Hearing Board consists of five members and one alternate, all of whom are appointed by the Bristol Town Council (“Town Council”). The Petitioner represents that the Hearing Board is referred certain cases by the Bristol Chief of Police in which a juvenile, who is a first-time offender, is charged with truancy or certain misdemeanors such as assault and battery resulting from fights at school, or drug or alcohol possession. Given her simultaneous service on both the School Committee and the Hearing Board, the Petitioner seeks advice as to whether she may participate in Hearing Board matters involving students from the School District. The Petitioner represents that she will recuse from participating in any Hearing Board matters if she becomes privy to information about the same incident in the course of her duties as a School Committee member. She states that many of the cases referred to the Hearing Board result from incidents within the School District. However, she represents that it is unlikely that the same incident will be considered by both the School Committee and the Hearing Board. She states that, if an incident happens at school, the incident generally remains within the School Committee’s jurisdiction unless the conduct is truly criminal. In cases concerning criminal conduct, she informs that the School Committee sends the cases involving Bristol residents directly to the Bristol Police Department without conducting a hearing. Thereafter, she states that the Bristol Police Department will determine whether the case should be sent to the Rhode Island Family Court, or in the case of a first-time offender, should be diverted to the Hearing Board. Under the Code of Ethics, 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 public official or employee is also prohibited from accepting other employment that would impair her independence of judgment as to her official duties or require or induce her to disclose confidential information acquired by her in the course of her official duties. Section 36-14-5(b). 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, a family member, business associate, or any business by which she is employed or which she represents. Section 36-14-5(d). 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 create an absolute bar against simultaneous service for two different governmental entities, even if they are located in the same municipality. See, e.g., A.O. 2014-19 (opining that the petitioner who held two regional elected positions for the Manville Fire District, serving both as Treasurer and Tax Collector, was not prohibited by the Code of Ethics from seeking election to serve as a Fire Warden in the Manville Fire District and, if elected, from simultaneously holding all three positions, given that all three positions were elected and had distinct duties); A.O. 2011-18 (opining that the Chief of Staff for the Town of Johnston, a municipal appointed position, was not prohibited by the Code of Ethics from continuing to serve as the Chairman of the Board of Commissioners for the Rhode Island Resource Recovery Corporation); A.O. 2010-57 (opining that the Chairman of the Board of Directors for the Coventry Fire District, a municipal elected position, was not prohibited from simultaneously holding office as a member of the Coventry Town Council, also a municipal elected position); A.O. 2009-27 (opining that the Code of Ethics did not prohibit the petitioner from simultaneously serving as a municipal appointed member of both the East Providence Planning Board and the East Providence Historic District Commission, in addition to being an East Providence Police Officer, a municipal employee position). As an initial matter, given the fact that neither the School Committee nor the Hearing Board is considered to be a “business,” as that term is defined in the Code of Ethics, the “business associate” prohibitions that would otherwise constrain the Petitioner while carrying out her public duties do not apply with respect to these two entities. See, e.g., A.O. 2014-23 (opining that neither the Board of Education Council on Elementary and Secondary Education nor Trinity Academy for the Performing Arts, a public charter school, was considered to be a “business” under the Code of Ethics). Here, the Petitioner is a member of two distinct public entities that have some overlapping jurisdiction over the discipline of juveniles who are residents of the Town of Bristol. She was elected by the citizens of Bristol to serve on the School Committee and was appointed by the Town Council to serve on the Hearing Board. While the jurisdictions of these public entities may overlap relative to student discipline, the Petitioner represents that she will recuse from participating in any Hearing Board matters if she becomes privy to information about the same incident in the course of her duties as a School Committee member. She further represents that it is unlikely that the same incident will be considered by both the School Committee and the Hearing Board. Therefore, there is no indication that her simultaneous service on the School Committee and the Hearing Board will violate the Code of Ethics. For all of these reasons, absent any other relevant fact that would implicate the Code of Ethics, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from simultaneously serving as a member of both the School Committee and the Hearing Board. 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 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(b) § 36-14-5(d) § 36-14-7(a) Related Advisory Opinions: A.O. 2014-23 A.O. 2014-19 A.O. 2011-18 A.O. 2010-57 A.O. 2009-27 Keywords: Dual Public Roles [1] This advisory opinion is limited to whether such conduct is prohibited by the Code of Ethics and, therefore, provides no opinion as to whether it is advisable for the Petitioner to serve simultaneously in both positions, or whether such simultaneous service is permitted under the Bristol Town Charter and Ordinances, or any other statute, policy or regulation.