Advisory Opinion No. 2016-30 Rhode Island Ethics Commission Advisory Opinion No. 2016-30 Approved: September 13, 2016 Re: Jennifer L. McHugh QUESTION PRESENTED: The Petitioner, a member of the Little Compton Budget Committee, a municipal elected position, requests an advisory opinion regarding whether she may participate in Budget Committee matters pertaining to the Little Compton Wilbur & McMahon School budget, given that her husband is a Little Compton School Committee member. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Little Compton Budget Committee, a municipal elected position, may participate in Budget Committee matters pertaining to the Wilbur & McMahon School and School Department budget generally, but must recuse from discussion and voting on any budgetary line item regarding School Committee members’ stipends. The Petitioner is a newly elected member of the Little Compton Budget Committee (“Budget Committee”). The Petitioner’s spouse is a member of the Little Compton School Committee (“School Committee”) and for his services he receives a stipend in the amount of One Thousand Two Hundred and 00/100 ($1,200.00) Dollars per year. The Petitioner represents that each year the various departments within the Town of Little Compton (the “Town”), including the School Committee, present their proposed budgets to the Budget Committee for consideration. After the Budget Committee reviews each proposed budget and finalizes its recommendations to increase, decrease, or keep the proposed budget as is, the Budget Committee presents its own entire Town budget at the Little Compton Financial Town Meeting. Thereafter, the registered voters of the Town consider, debate, amend and approve the Town budget, article by article. Given this set of facts, the Petitioner requests an advisory opinion as to whether she may participate in Budget Committee matters regarding the Little Compton Wilbur & McMahon School budget. Generally, the Code of Ethics prescribes that a public official or employee shall not have any interest, financial or otherwise, direct or indirect, or engage in any transaction or professional activity which is in substantial conflict with the proper discharge of her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if the official or employee has reason to believe or expect that she or any family member, or any business associate, or any business by which she is employed or which she represents will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Also, a public official or employee may not use her public position to obtain financial gain, other than that provided by law, for herself or any member of her family. Section 36-14-5(d). Finally, Commission Regulation 36-14-5004 contains provisions aimed at curbing nepotism, and particularly addresses the question raised by the Petitioner as follows: (3) Participation in Budgets. (A) General Prohibition. No person subject to the Code of Ethics shall participate 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 his or her family or a household member. (B) Specific Line Items. Notwithstanding the prohibition set forth in subsection 3(A), a person subject to the Code of Ethics may, only in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion, participate in discussion or decision-making relative to a budgetary line item that addresses or affects the employment, compensation or benefits of any person within his or her family or a household member 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. (C) Vote on Entire Budget. Notwithstanding the prohibition set forth in subsection 3(A), a person subject to the Code of Ethics may participate in discussion or decision-making relative to approving or rejecting the entire budget as a whole, provided that the person within his or her family or household member 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. Commission Regulation 36-14-5004(b)(3). Applying this provision to an analogous question, in Advisory Opinion 2009-20 the Ethics Commission opined that a member of the Tiverton Budget Committee, whose wife was a School Committee member who received a stipend for her services, could participate in Budget Committee matters regarding the School Committee generally, but must recuse from discussion and voting regarding School Committee members’ stipends. Similarly, in the instant matter the Petitioner is prohibited from participating in any Budget Committee discussion or voting on line items in the School Committee budget related to School Committee members’ stipends. Nonetheless, the Petitioner is permitted to participate in the Budget Committee’s discussion and decision-making relative to approving or rejecting other line items in the School Committee budget and the School Committee budget as a whole. See A.O. 2007-30 (opining that a member of the East Providence School Committee was prohibited by the Code of Ethics from participating in any budgetary line item relative to bus monitors, given that he had a family member who was employed as a bus monitor, but that he may vote on the budget as a whole). The rationale for allowing such participation is an assumption that a vote on an overall budget is sufficiently remote from most particular line items so as not to constitute a substantial conflict of interest in violation of the Code. Furthermore, nothing in the Code of Ethics prohibits the Petitioner from participating in budget matters that impact the School Department in general, including specifically the Wilbur & McMahon School, notwithstanding her husband’s position on the School Committee. See A.O. 2002-44 (Warwick City Councilor, whose spouse was employed by the Warwick School Department, may participate in and/or vote on the Town budget even if it includes matters related to school budgets and school issues generally, provided that he does not participate in and/or vote on specific matters related to personnel issues affecting his spouse). In summary, the Code of Ethics does not prohibit the Petitioner from participating in Budget Committee matters pertaining to the School Department or the Wilbur & McMahon School. The Petitioner may also participate in matters relating to the School Committee budget, with the exception of any line items pertaining to School Committee members’ stipends. Any notice of recusal must 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 36-14-5004 Related Advisory Opinions: A.O. 2009-20 A.O. 2007-30 A.O. 2002-44 Keywords: Nepotism Budgets