Advisory Opinion No. 2015-17 Approved: April 14, 2015 Re: Maria Lawler QUESTION PRESENTED: The Petitioner, the Treasurer for the Town of Exeter, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from accepting an offer from the Town Council that would expand her role as Treasurer from that of a part-time to a full-time position, with an associated increase in salary commensurate with the expansion of her duties. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Treasurer for the Town of Exeter, a municipal elected position, is not prohibited by the Code of Ethics from accepting an offer from the Town Council that would expand her role as Treasurer from that of a part-time to a full-time position, with an associated increase in salary commensurate with the expansion of her duties. The Petitioner is the Treasurer for the Town of Exeter (“Town”), having been appointed by the Town Council to fill a vacant position in 2009, and then elected by the Town’s residents in 2010, 2012 and 2014. She states that the Treasurer position is currently part-time and has an annual salary of $20,000. The Petitioner represents that the Exeter Town Council (“Town Council”) has approached her with the idea of expanding the Treasurer’s role to full-time and increasing the salary commensurate with the additional responsibilities and time required. She states that the Town Council proposes to do this by giving the Treasurer the duties of a related subordinate position and then leaving that subordinate position vacant. She informs that there are currently two vacant positions in the Town with duties related to those of the Treasurer: the Deputy Treasurer and the Tax Collector Clerk. She states that the present vacancies have provided the Town Council with an opportunity to better allocate resources within the offices of the Treasurer and the Tax Collector. The Petitioner states that the Town Council must first decide how it will expand the Treasurer’s role and which position to combine with it. She informs that the Town Council will then set a salary for this expanded Treasurer position. Finally, the increase in the Treasurer’s salary must be approved at the Financial Town Meeting in June, at which the Town’s residents vote to approve each line item. She states that, because the Treasurer’s salary increase will likely be more than a 5.5% increase, it will require a two-thirds majority vote in order to be approved at the Financial Town Meeting. She further states that whichever position is combined with that of the Treasurer will be either left vacant or eliminated, and that she will still only be holding one position in the Town. She represents that this is her primary employment, she is available to work full-time, and would accept the offer of an expanded position. The Petitioner represents that the Town Council initiated these proposed changes to the Treasurer position. She states that, while she may be in attendance at the Town Council meetings and the Financial Town Meeting, her participation will be limited to providing factual information about the current budget allocations for any of the positions in question. She informs that she will not participate in Town Council’s decision making relative to the expansion of her job specifications or the determination of her salary. Given the above representations, the Petitioner seeks advice as to whether she may accept the expansion of her position as Treasurer if offered by the Town Council, including the increased salary, provided that it is approved by the Town’s residents at the Financial Town Meeting in June. The Code of Ethics restricts a municipal elected official’s ability to accept employment within the same municipality in which they serve. Commission Regulation 36-14-5014 (“Regulation 5014”), entitled “Municipal Official Revolving Door,” provides: No municipal elected official or municipal school committee member, whether elected or appointed, while holding office and for a period of one (1) year after leaving municipal office, shall seek or accept employment with any municipal agency in the municipality in which the official serves, other than employment which was held at the time of the official’s election or appointment to office or at the time of enactment of this regulation, except as provided herein. Regulation 5014(a). A public official also 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). The Code of Ethics also 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 business by which she is employed or which she represents. Section 36-14-5(d). The Commission considered a similar fact pattern in Advisory Opinion 2008-29, in which it opined that the Treasurer for the Town of Scituate, also a municipal elected position, was not prohibited by the Code of Ethics from accepting an offer from the Scituate Town Council that would expand his position from part-time to full-time with a commensurate salary increase. In that case, the Deputy Treasurer, a full-time employee who ran the daily operations of the Treasurer’s Office, had resigned, and the Town Council wanted to expand the Treasurer’s role as a cost-saving measure. First, with respect to Regulation 5014, the Commission found that the revolving door restriction was inapplicable because the petitioner was not “seeking or accepting employment” in any new position, but rather, would be serving more hours in his position as Treasurer and performing more day-to-day tasks, over which he always had supervisory responsibility. Second, the Commission concluded that the prohibitions contained in subsections 5(a) & (d) of the Code of Ethics were not implicated based upon the petitioner’s representations that he had not participated in the decision making relative to the proposed expansion of his job duties or his salary increase, and that the proposal was formulated at the Town Council’s initiative, not his own. In the present matter, although the Town Council’s proposal would expand the Petitioner’s role as Treasurer by combining her duties with that of a related position, the expanded Treasurer position would remain a single position with either the Deputy Treasurer or Tax Collector Clerk position being left vacant or eliminated. Therefore, similar to Advisory Opinion 2008-29, the instant set of facts does not implicate Regulation 5014 because the Petitioner would not be accepting an offer of employment for a new position, but merely the expansion of her current position as Treasurer. Additionally, consistent with Advisory Opinion 2008-29, the prohibitions contained in subsections 5(a) & 5(d) of the Code of Ethics are not implicated here because the Petitioner did not initiate the proposal to expand her position, and she represents that she will not participate in the Town Council’s decision making regarding the expansion and commensurate salary increase. Furthermore, the salary increase has to be approved not only by the Town Council but also by the Town’s residents at the Financial Town Meeting. Accordingly, based on all of these representations, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from accepting an offer from the Town Council that would expand her role as Treasurer from that of a part-time to a full-time position, with an associated increase in salary commensurate with the expansion of her duties. 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: § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) Commission Regulation 36-14-5014 Related Advisory Opinions: A.O. 2008-29 Keywords: Compensation