Advisory Opinion No. 2015-48 Rhode Island Ethics Commission Advisory Opinion No. 2015-48 Approved: December 8, 2015 Re: Keith A. Oliveira QUESTION PRESENTED: The Petitioner, a member of the Providence School Board, a municipal appointed position, who is also employed as the Chief Operating Officer of the Rhode Island Nurses Institute Middle College Charter School, a public charter school, requests an advisory opinion regarding whether the Code of Ethics prohibits him from simultaneously serving in both positions and whether he may participate in School Board 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 Providence School Board, a municipal appointed position, is not prohibited by the Code of Ethics from simultaneously serving as the Chief Operating Officer of the Rhode Island Nurses Institute Middle College Charter School, a public charter school, nor is he prohibited from participating in School Board actions that directly impact that charter school. The Petitioner is a member and the current President of the Providence School Board (“School Board”), having been first appointed in April 2011 by Mayor Angel Taveras and reappointed to a three-year term in January 2015 by Mayor Jorge O. Elorza. He represents that, in accordance with state law, the School Board is vested with “the entire care, control, and management of all public school interests” of the City of Providence (“City”) in addition to other specifically enumerated duties set forth in Rhode Island General Laws § 16-2-9. The Petitioner also informs that he is employed as the Chief Operating Officer (“COO”) of the Rhode Island Nurses Institute Middle College Charter School (“RINIMC”). He represents that RINIMC is an independent public charter school located in the City, which was founded by the Rhode Island State Nurses Association in 2011. He represents that RINIMC enrolls students from all over Rhode Island. He informs that his duties as COO include managing non-academic operational issues related to school facilities, transportation, food services, and school safety and security. Although RINIMC is located within the City, he informs that RINIMC and the Providence School District (“School District”) are separate and distinct Local Education Agencies (“LEAs”), which operate independently. The Petitioner informs that RINIMC is operated by its Board of Directors, which has been authorized by the Rhode Island Board of Education – Council on Elementary and Secondary Education (“Board of Education”). He states that the Board of Education maintains jurisdiction to renew or revoke RINIMC’s charter. He further states that the Board of Education has delegated to the Rhode Island Department of Education (“RIDE”) the “authority and responsibility to manage a comprehensive system of charter school accountability, review, and monitoring, and system management.”[1] The Petitioner represents that, in accordance with the state funding formula for charter schools, the School Board is required to pay a per student tuition to any charter school attended by School District students.[2] He further represents that state law does not allow the School Board any discretion in making these payments to the charter schools.[3] Therefore, he states that the School Department’s Business Manager authorizes the quarterly payments to each charter school attended by School District students, which includes RINIMC. He states that the School Board does not vote to make the mandated payments to the charter schools but does approve the payments as part of the School District’s annual budget. The Petitioner also informs that some charter school students play on the School District’s sports teams because some charter schools do not provide those opportunities. He represents that the School Board will be discussing and potentially implementing a per student fee for charter schools to pay the School District to cover the costs of charter school students playing on School District sports teams, given that the School District’s designated tuition payments for those students have already been dispersed to the charter schools. The Petitioner represents that generally, given the separate jurisdiction of RINIMC and the School District, there are not many interactions between the School Board and RINIMC. However, he states that many City residents attend charter schools, including RINIMC. Therefore, he seeks guidance as to whether he can participate in School Board discussions and decision making relative to charter schools generally, and RINIMC in particular, given the state’s funding formula for charter schools and issues related to fees for charter school students, who are residents of the City, playing on the School District’s sports teams. Under the Code of Ethics, a public official is prohibited from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any business by which he is employed or which he represents. R.I. Gen. Laws § 36-14-5(d). Additionally, a public official must recuse himself from participation when his business associate or employer appears or presents evidence or arguments before his state or municipal agency. Commission Regulation 36-14-5002(a)(2); 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 his 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 he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his 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). As an initial matter, section 36-14-5 of the Code of Ethics requires the Petitioner to recuse from taking any official action as School Board member that would result in a direct financial impact to himself. Here, there does not appear to be a correlation between the School District’s mandatory payments under the state funding formula to RINIMC and the Petitioner’s current employment at RINIMC. Furthermore, the authority to change the charter school funding formula is vested with the Rhode Island General Assembly, not the School Board. Similarly, the Petitioner represents that the implementation of fees for charter school students to play on School District sports teams, to be paid by the charter schools, would not have a direct impact upon his continued employment or compensation at RINIMC. Accordingly, based upon the facts represented above, there is no indication that the Petitioner’s participation in the School Board’s discussions and decision making relative to charter schools, RINIMC in particular, would result in a direct financial impact to himself. The next 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 he is an employee. 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, of which he is a member or by which he is employed, to be that of “business associates.” The Commission has also specifically found that a charter school, as a public school,[4] is not a “business” as the term is defined in the Code of Ethics. See 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). For example, the Commission opined in Advisory Opinion 2014-23 that a member of the Rhode Island Board of Education – Council on Elementary and Secondary Education (“Board of Education”), who was also a board member of the Trinity Academy for the Performing Arts (“TAPA”), a public charter school, was not a business associate of either entity because neither the Board of Education (a state agency) nor TAPA (a public school) constituted a business under the Code of Ethics. Therefore, the petitioner was not prohibited by the Code of Ethics from participating in Board of Education actions that directly impacted TAPA. See also 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 of the Board of Governors because, under the Code of Ethics, neither the Board of Governors nor TAC was considered a “business”);[5] A.O. 2011-29 (opining that a Portsmouth Planning Board member, 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, as a DOT engineer, she had been reviewing the same property to ensure that the state’s property interests were protected. Accord A.O. 2013-3; A.O. 2010-57; A.O. 2008-50; A.O. 2007-24 A.O. 2002-55; A.O. 2002-1. In the present matter, neither the School Board (a municipal agency) nor RINIMC (a public school) is considered to be a “business” under the Code of Ethics. Therefore, neither the Petitioner’s membership on the School Board nor his employment with RINIMC constitute a “business association” under the Code of Ethics. Accordingly, 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 the School Board and as an employee of RINIMC nor is he prohibited from participating in School Board matters that directly impact RINIMC. Notwithstanding the Code of Ethics, the Petitioner is advised to consider whether his employment at RINIMC prevents him from being able to participate in School Board matters that involve RINIMC in a fair and objective manner and whether his participation would create an appearance of impropriety. The Petitioner is also cautioned that if any matters should come before him as he is carrying out his duties in either of his 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, he 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 Board of Education and/or RIDE policy, 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. 2014-23 A.O. 2013-3 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 Other relevant statutes: § 16-2-9 § 16-77-3.1 § 16-77.1-2 §§ 16-97-1 to -8