Advisory Opinion No. 2016-11 Rhode Island Ethics Commission Advisory Opinion No. 2016-11 Approved: March 22, 2016 Re: Kimberly L. Alves QUESTION PRESENTED: The Petitioner, a member of the North Smithfield Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics requires her to recuse from participation when her husband, the Director of the North Smithfield Department of Public Works, appears before the Town Council in his official capacity relative to the operations of the Department of Public Works. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the North Smithfield Town Council, a municipal elected position, is not required by the Code of Ethics to recuse when her husband, the Director of the North Smithfield Department of Public Works, appears before the Town Council in his official capacity relative to the operations of the Department of Public Works provided that he has no personal financial interest in the matter under discussion and all of the requirements of Commission Regulation 36-14-5002(b)(1) are satisfied. The Petitioner is a member of the North Smithfield Town Council (“Town Council”). She represents that she recently married the Director of the North Smithfield Department of Public Works (“DPW Director”). Cognizant of the Code of Ethics, the Petitioner represents that she initially sought advice from the Ethics Commission in 2011 at the start of her personal relationship with the DPW Director. She states that, consistent with the informal guidance she received from the Ethics Commission, she has been recusing from all Town Council matters that involve the compensation, benefits or job performance of the DPW Director. The Petitioner states that the Town of North Smithfield (“Town”) is governed by the Town Council and managed on a daily basis by its elected Town Administrator.[1] She represents that in 2006 the Town Administrator appointed her husband to serve as the DPW Director.[2] She informs that the DPW Director, along with all of the other Town department heads, reports to the Town Administrator.[3] She states that while the Town Council has the authority “to inquire into the conduct of any office or officer, department or agency of the [T]own,” the Town Council does not supervise any of the Town’s department heads. North Smithfield Town Charter Art. IV, § 8(5). The Petitioner represents that, while she understands that she is required to recuse from matters that will financially impact her husband, she seeks clarity on whether she must recuse from participation when her husband appears before the Town Council in his official capacity as DPW Director. For example, she states that the DPW Director must receive approval from the Town Council prior to advertising public bids or awarding contracts for services, supplies or equipment. She further states that the DPW Director will report to the Town Council on the status of his operating budget, make requests for emergency funding for broken equipment, or discuss any other matters related to the operations of the Department of Public Works. She informs that the Department of Public Works has jurisdiction over the highway division, the parks and recreation division, the water and sewers division, the engineering division, as well as the building custodian and the tree warden. Under the Code of Ethics, a public official 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). Commission Regulation 36-14-5004 (“Regulation 5004”) sets forth more specific nepotism provisions that apply to any person within the Petitioner’s family or any person who resides in her household. The definition of “any person within [] her family” specifically includes “spouse.” Regulation 5004(a)(2). In general, Regulation 5004(b)(1) prohibits the Petitioner from participating in any matter as part of her public duties if she “has reason to believe or expect that any person within [] 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)(2) further prohibits the Petitioner from participating in the “supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within [] her family,” and from delegating such tasks to a subordinate. Finally, Regulation 5004(b)(3)(A) prohibits the Petitioner from participating “in discussion or decision-making relative to a budgetary line item that would address or affect the employment, compensation or benefits of any person within [] her family.” However, Regulation 5004(b)(3)(C) provides that the Petitioner is not prohibited from participating “in discussion or decision-making relative to approving or rejecting the entire budget as a whole, provided that the person within [] her family . . . is impacted by the entire budget as a member of a significant and definable class of persons, and not individually or to any greater extent than any other similarly situated member of the class.” Section 36-14-5 and Regulation 5004 clearly prohibit the Petitioner from participating in any Town Council matters in which her husband will be financially impacted, positively or negatively, including, but not limited to, matters relating to his compensation, benefits, supervision or job performance. Commission Regulation 36-14-5002(a)(1) (“Regulation 5002”) also requires the Petitioner to recuse from participating in any matter in which her husband appears to present evidence or arguments before the Town Council, unless one of the two exceptions contained in Regulation 5002(b) applies. The instant matter implicates the exception found at Regulation 5002(b)(1) which applies when a public official’s family member appears before the public official’s board in an official capacity to share information or coordinate activities on a matter in which the public official’s family member has no financial interest and is not a party or a participant.[4] Regulation 5002(b)(1) states: (b) A person subject to the Code of Ethics is not required to recuse himself or herself pursuant to this or any other provision of the Code when: (1) The person’s business associate, employer, household member or any person within his or her family is before the person’s state or municipal agency, solely in an official capacity as a duly authorized member or employee of another state or municipal agency, to participate in non-adversarial information sharing or coordination of activities between the two agencies, provided that the business associate, employer, household member or person within his or her family is not otherwise a party or participant, and has no personal financial interest, in the matter under discussion. This is the first opportunity that the Ethics Commission has had to consider the application of Regulation 5002(b)(1) in an advisory opinion. The most illustrative examples of these situations, and the impetus for this 2012 amendment to Regulation 5002, can be found in two advisory opinions issued to Robert Coulter and one advisory opinion issued to his spouse, Danielle Coulter. The Commission first considered Advisory Opinion 2010-4, in which Mrs. Coulter, then a member of the Tiverton School Committee (“School Committee”), asked if she was required to recuse when the School Committee and the Tiverton Budget Committee (“Budget Committee”) conducted joint meetings or workshops, or when the School Committee presented its proposed annual budget to the Budget Committee, given that Mr. Coulter was then a member of the Budget Committee. In that case, the question was whether Regulation 5002(a) or Regulation 5004(b)(1) applied to instances in which Mrs. Coulter’s spouse appeared before her board as part of his public duties. Given that in both scenarios Mrs. Coulter and Mr. Coulter would be acting in their public capacities with no reasonably foreseeable financial impact upon either spouse as a result of their official actions, the Commission concluded that Mrs. Coulter was not prohibited from participating in either the joint meetings/workshops or the School Committee’s presentation to the Budget Committee.[5] Similarly, in Advisory Opinion 2011-8, Mr. Coulter, then a member of the Tiverton Town Council, sought guidance as to whether he could participate in the Town Council’s discussions and vote regarding a funding dispute between the Town of Tiverton and the Tiverton School Committee, given that Mrs. Coulter was then still a member of the School Committee. There, based upon Mr. Coulter’s representations that neither he nor his spouse had a personal financial interest in the funding dispute, and that all communications between the Tiverton Town Council and School Committee would occur while Mr. Coulter was acting in his official capacity as a Town Council member, the Commission opined that Mr. Coulter was not prohibited by the Code of Ethics from: 1) participating in Town Council matters related to the funding dispute; 2) appearing in his official capacity at any meetings of, or with, the School Committee where the funding dispute or other official business was discussed; or 3) attending and participating in executive session discussions regarding the funding dispute or any potential litigation that could result from said dispute. After reviewing the logical conclusions in Advisory Opinions 2010-4, 2010-5 and 2011-8, the Commission recognized the need to amend Regulation 5002(a) to exclude situations in which family members holding dual public roles worked together in their official capacities, provided that neither family member had a personal financial interest or was a party or participant in that proceeding. Therefore, in 2012 the Commission adopted Regulation 5002(b)(1) as an exception to the general rule requiring recusal if an official’s family member, business associate or private employer appears before the official’s state or municipal agency. If this limited set of circumstances occurs, and all of the requirements of Regulation 5002(b)(1) are met, then recusal is not required. Although we cannot anticipate all of the reasons that the DPW Director may appear before the Town Council, we can provide general guidance as to the application of Regulation 5002(b)(1) based upon the facts represented above. Here, the occasions in which the DPW Director appears before the Town Council in his official capacity for matters such as seeking approval to advertise or award a public bid, requesting emergency funding to repair equipment, or providing status reports on the budget and operations of the Department of Public Works constitute non-adversarial information sharing and coordination of activities between the Town Council and one of its municipal departments. Thus, if the Petitioner’s husband appears before the Town Council in his official capacity as the DPW Director relative to a matter in which he does not have a personal financial interest, and in which he is not otherwise a party or participant, the Petitioner is not required to recuse provided that all of the requirements of Regulation 5002(b)(1) are satisfied. Consistent with the above analysis, it is the opinion of the Ethics Commission that the Petitioner is not required by the Code of Ethics to recuse when her husband appears before the Town Council in his official capacity as DPW Director provided that he has no personal financial interest in the matter under discussion and all of the requirements of Regulation 5002(b)(1) are satisfied. In the future, if additional factual scenarios occur that are not contemplated by this advisory opinion, the Petitioner should recuse or seek further advice from the Ethics Commission. Notice of recusal shall be filed with the Ethics Commission in accordance with 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 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) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5002 Commission Regulation 36-14-5004 Related Advisory Opinions: A.O. 2011-8 A.O. 2010-5 A.O. 2010-4 Keywords: Family: Public Employment Nepotism [1] Article V, section 6 of the North Smithfield Town Charter (“Town Charter”) states: “The town administrator shall be the chief executive and administrative officer of the town and shall be responsible for the administration of all departments, offices and agencies except as otherwise provided by this charter.” [2] The Town Charter further provides: “There shall be a department of public works, the head of which shall be a full-time director of public works, who by training and experience shall be qualified to administer the duties and responsibilities described herein, and who shall be appointed by the town administrator.” Art. X, § 1. [3] The Town’s departments are organized as follows: “Town government will consist of five primary departments: finance, public works, public safety, administration and school. All department heads shall be responsible solely to, and take direction from, the town administrator with the exception of the school department which is responsible to the school committee.” North Smithfield Code of Ordinances § 2-16(a). [4] This exception took effect on June 3, 2012. [5] Mr. Coulter simultaneously requested an advisory opinion and was issued Advisory Opinion 2010-5, in which the Commission came to the same conclusion.