Advisory Opinion No. 2017-44

Rhode Island Ethics Commission

Advisory Opinion No. 2017-44

Approved: September 26, 2017

Re:  Frank Colin Douglas

QUESTION PRESENTED:

The Petitioner, a member of the Barrington Committee on Appropriations, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics imposes any limitations on his public service given that his wife is currently serving as an elected member of the Barrington School Committee.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Barrington Committee on Appropriations, a municipal elected position, is not barred from serving thereon and is not required to recuse from its budgetary reviews, deliberations or voting relative to the Town or the School Department budget, notwithstanding his wife’s presence or participation as a duly elected member of the Barrington School Committee, provided that neither he nor his wife have a 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 was elected at the 2017 Barrington Financial Town Meeting to serve a two-year term on the Barrington Committee on Appropriations (“COA”).  The COA is a five-member committee tasked by Barrington Town Charter to review the budgets proposed by the Barrington Town Council and the Barrington School Committee (“School Committee”), and to meet with those bodies as often as is necessary to develop a consolidated tentative Town budget which the COA shall present to Barrington’s registered voters at the Financial Town Meeting.  See Barrington Town Charter, § 6-4-5; 6-4-6.

The Petitioner states that his wife was elected in November 2016 to serve a four-year term on the School Committee.  Pursuant to the Town Charter, the School Committee is required to submit its proposed budget to the Committee on Appropriations by March of each year, and to meet with the COA as necessary to assist in the COA’s preparation of the Town budget.  See Barrington Town Charter, § 6-4-4.

The Petitioner represents that neither he nor his wife, nor any other family members, are employed by the Town or School Department, and that they are not impacted by the Town or School Department budget any differently than any other registered voter, property owner or parent of children attending Barrington schools.  Based on all of the above representations, the Petitioner seeks guidance from the Ethics Commission as to whether the Code of Ethics imposes any limitations on his ability to serve on the COA and participate in all of its meetings and deliberations, particularly those which include his wife’s participation as a member of the School Committee.

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 or his family, business associate, or any business by which he is employed or which he represents.  Section 36-14-5(d).

Commission Regulation 36-14-5004 (“Regulation 5004”) sets forth more specific nepotism provisions which are applicable to matters that involve or impact any person within the Petitioner’s family or any person who resides in his household.  The definition of “any person within his [] family” specifically includes a “spouse.”  Regulation 5004(a)(2). In general, Regulation 5004(b)(1) prohibits the Petitioner from participating in any matter as part of his public duties if he “has reason to believe or expect that any person within his [] 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)(3)(A) further 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 his [] 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 his [] 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 COA matters in which his wife is likely to be financially impacted, positively or negatively.  Commission Regulation 36-14-5002(a)(1) (“Regulation 5002”) also requires the Petitioner to recuse from participating in any matter in which his wife appears to present evidence or arguments before the COA, 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 personal financial interest and is not a party or a participant.  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.

The impetus for the adoption of this exception in 2012 were two extremely analogous advisory opinions issued to a husband and wife, Robert and Danielle Coulter.  The Commission first considered Advisory Opinion 2010-4, in which Danielle Coulter, then a member of the Tiverton 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 her husband 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 Ms. Coulter’s spouse appeared before her board as part of his public duties on the Budget Committee.  Given that in both scenarios Ms. Coulter and Mr. Coulter would be acting in their official capacities with no reasonably foreseeable financial impact upon either spouse as a result of their official actions, the Commission concluded that Ms. Coulter was not prohibited from participating in either the joint meetings/workshops or the School Committee’s presentation to the Budget Committee.  

Thereafter, in Advisory Opinion 2011-8, Robert Coulter, then a member of the Tiverton Town Council (“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 Council and the School Committee, given that his wife 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 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.

Following the issuance of Advisory Opinions 2010-4 and 2011-8, the Commission recognized the need to amend Regulation 5002(a) to expressly exempt situations in which family members who simultaneously hold public positions work together in their official capacities, provided that neither family member has a personal financial interest or is a party or participant in that proceeding.  Therefore, in 2012 the Commission adopted Regulation 5002(b)(1) as an exception to the regulation’s general rule requiring recusal if an official’s family member appears before the official’s state or municipal agency.  See A.O. 2016-11 (applying the Regulation 5002(b)(1) exception, a member of the North Smithfield Town Council was not required to recuse when her husband, the Director of the Department of Public Works, appeared before the Town Council in his official capacity relative to the operations of the Department of Public Works). 

Here, the Petitioner represents that both his and his wife’s participation in the budget process are solely in their capacities as duly elected officials of the Town of Barrington, and that neither he nor his wife have personal financial interests in the budgetary process other than as general taxpayers, property owners and parents of schoolchildren, the same interests shared by other members of the School Committee and COA.  Based on these representations, it is the opinion of the Ethics Commission that the Petitioner is not barred by the Code of Ethics from serving on the COA, nor from participating in COA meetings, discussions and voting on budget matters, including participation in meetings at which his wife is present or participating as a member of the School Committee.

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 36-14-5002

Commission Regulation 36-14-5004

Related Advisory Opinions:

A.O. 2016-11

A.O. 2011-8

A.O. 2010-5

A.O. 2010-4

Keywords: 

Family

Nepotism