Advisory Opinion No. 2015-5 Approved: February 3, 2015 Re: Keven Miller QUESTION PRESENTED: The Petitioner, a member of the Chariho School Committee, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits his participation in the School Committee’s decision-making relative to the Kingston Hill Academy, a public charter school attended by the Petitioner’s two children. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Chariho School Committee, a municipal elected position, is not prohibited by the Code of Ethics from participating in the School Committee’s decision-making relative to the Kingston Hill Academy, a public charter school attended by the Petitioner’s two children. The Petitioner is a member of the Chariho School Committee (“School Committee”), which is a regional school district for the Towns of Charlestown, Richmond and Hopkinton. He represents that he is a resident of Richmond and has two children that attend the Kingston Hill Academy (“KHA”), a K-5 public charter school located in Saunderstown, Rhode Island. He states that his children are his only connection to KHA. He represents that he is not a member of KHA’s Board of Directors. He states that KHA is a public school that admits students via a lottery. The Petitioner states that there are approximately thirty children who are residents of the Chariho School District whose parents have chosen to send them to KHA. He represents that in accordance with the state funding formula for charter schools, the School Committee is required to pay a per student tuition of approximately $10,000 to any charter school attended by Chariho School District students.[1] He informs that the School Committee approves all charter school payments prior to each disbursement. He states that Rhode Island General Laws § 16-77.1-2 does not allow the School Committee any discretion in making these payments to the charter schools. In fact, state law provides: Any local school district more than thirty (30) days in arrears on a quarterly payment for its student(s) enrolled in a charter public school shall have the amount of the arrearage deducted from state aid to that district and the withheld arrearage shall be paid by the state directly to the charter public school. Section 16-77.1-2(e). While the Petitioner informs that there could be questions of whether the School Committee is obligated to pay a particular student’s charter school tuition, he states that there is no question that his children are residents of the Chariho School District. The Petitioner states that he has participated in the School Committee’s votes to pay KHA for Chariho School District students’ tuition and bussing. He represents that there has been some significant opposition within Chariho regarding these payments to KHA, in addition to other concerns relating to KHA. The Petitioner seeks advice as to whether he can participate in the School Committee’s discussions and decision-making relative to taking a position for or against matters involving KHA, such as: additional charter school seats in Washington County, particularly at KHA; causes for Chariho’s declining enrollment; allegations that KHA discriminates against students with disabilities, given that one of his children who attends KHA is disabled; and tuition payments to KHA. Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his 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, 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). The Code of Ethics also prohibits a public official 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 whom he represents. Section 36-14-5(d). Additionally, Commission Regulation 36-14-5004 (Regulation 5004), entitled “Prohibited Activities – Nepotism” provides: No person subject to the Code of Ethics shall participate in any matter as part of his or her public duties if he or she has reason to believe or expect that any person within his or her family, or any household member, is a party to or a participant in such matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage, as the case may be. Regulation 5004(b)(1). “A person within his or her family” specifically includes “son” and “daughter.” Regulation 5004(a)(2). The Commission has previously opined in Advisory Opinion 2010-35, that a school committee member’s child, in the ordinary course of attending a public school over which that school committee had budgetary decision-making authority, was not receiving the type of direct financial benefit or gain that is prohibited by §§ 36-14-5(a) & (7)(a) or Regulation 5004. There, the Commission specifically found that the right to attend a public school and receive the benefits of a public education, as guaranteed by Rhode Island General Laws §§ 16-2-2 & -27, and made compulsory by Rhode Island General Laws § 16-19-1, do not constitute a prohibited direct financial or monetary gain as contemplated by §§ 36-14-5(a) & 7(a) or Regulation 5004(b)(1). A.O. 2010-35. However, the Commission has also opined that the Code of Ethics would prohibit a school committee member from participating in his public capacity in matters specific to his individual child’s public education, such as decisions regarding the provision of particularized services to that child, or disciplinary or other matters in which that particular child is implicated or involved, as those circumstances could give rise to the prohibitions found in Regulation 5004(b)(1) if the child is considered to be a “party to or a participant in such matter.” A.O. 2010-35. As an initial matter, given that Rhode Island General Laws § 16-77-3.1(b) states that a charter school such as KHA, “shall be deemed to be a public school acting under state law,” we find that any budgetary decisions made by the Petitioner as a member of the School Committee, in accordance with the state funding formula, do not constitute a prohibited direct financial benefit to the Petitioner or his family under the above provisions of the Code of Ethics. The Chariho School Committee is required by state law to make a per student tuition payment to KHA for each student who is a resident of the Chariho School District. The Petitioner pays the same property taxes irrespective of whether his children attend Chariho schools, a public charter school, or a private independent or religious school. Furthermore, the Chariho School Committee’s jurisdiction and authority is limited to the district’s schools and the children attending those schools. The School Committee has no authority over KHA, which is an independent public charter school under the direct jurisdiction of its Board of Directors and authorized by the Rhode Island Department of Education. Therefore, given that the Chariho School Committee has no authority to effect any changes at KHA, the Petitioner’s participation in School Committee discussions regarding state-mandated tuition payments to KHA, or other issues such as KHA’s expansion, policies and very existence, does not trigger the prohibitions contained in the Code of Ethics. Accordingly, based upon the Petitioner’s representations, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from participating in the School Committee’s decision-making relative to KHA, notwithstanding that his two children are students at KHA. 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 36-14-5004 Related Advisory Opinions: A.O. 2010-35 Keywords: Family: Financial Benefit Nepotism [1] R.I. Gen. Laws § 16-77.1-2(a) provides, in relevant part: Operating costs of a charter public school shall be the total of the per pupil payments for each student attending the charter public school. The per pupil payment for each student shall be determined based on the per pupil cost for the district of residence of each student. . . . The local share of the per pupil amount for each student attending the charter public school shall be paid to the charter public school by the district of residence of the student and shall be the per pupil cost for the district of residence of the student minus the state share of that per pupil cost as designated in this section.