Advisory Opinion No. 2018-59 Rhode Island Ethics Commission Advisory Opinion No. 2018-59 Approved: December 11, 2018 Re: Caswell Cooke, Jr. QUESTION PRESENTED: The Petitioner, a member of the Westerly Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Town Council’s discussion and/or decision-making relative to matters involving the Westerly School Committee and/or the Elementary School Redesign Committee, given that his wife is currently serving as an elected member of the Westerly School Committee and as an appointed member of the Elementary School Redesign Committee. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Westerly Town Council, a municipal elected position, is not barred from participating in the Town Council’s discussion and/or decision-making relative to matters involving the Westerly School Committee and/or the Elementary School Redesign Committee, notwithstanding that his wife is currently serving as an elected member of the Westerly School Committee and as an appointed member of the Elementary School Redesign Committee, provided that neither he nor his wife has a personal financial interest in any matter under discussion and that all other requirements of Commission Regulation 36-14-5002(b)(1) are satisfied. The Petitioner was elected to the Westerly Town Council (“Town Council”) on November 6, 2018.[1] His wife was elected to a four-year term on the Westerly School Committee (“School Committee”) in 2016. The Petitioner states that his wife is also one of several members of the School Committee appointed by the School Committee Chair to the Elementary School Redesign Committee (“Redesign Committee”), of which the Petitioner’s wife is co-chair. The Petitioner represents that matters involving the School Committee will occasionally be brought before the Town Council, usually about once each year during budget discussions or when there is a school capital or building project. The Petitioner further represents that the Redesign Committee is eventually expected to bring a plan before the Town Council, at which time the Town Council will decide whether or not to present said plan to the voters in the form of a referendum. The Petitioner states that neither he nor his wife has a personal financial interest in any matter brought before the Town Council as relates to the School Committee or the Redesign Committee. The Petitioner seeks an opinion regarding whether, under the circumstances, he may participate in discussions and decision-making on matters involving the School Committee and/or the Redesign 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”)[2] 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. Section 36-14-5 and Regulation 5004 clearly prohibit the Petitioner from participating in any School Committee matters in which he and/or his wife are likely to be financially impacted, positively or negatively. Commission Regulation 36-14-5002(a)(1) (“Regulation 5002”)[3] also requires the Petitioner to recuse from participating in any matter in which his wife appears to present evidence or arguments before the Town Council, unless one of the two exceptions contained in Regulation 5002(b) applies. Specifically, Regulation 5002(a)(1) states: (a) A person subject to this Code of Ethics must also recuse himself or herself from participation in accordance with R.I. Gen. Laws § 36-14-6 when any of the following circumstances arises: (1) Any person within his or her family, or a household member, appears or presents evidence or arguments before his or her state or municipal agency. 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 Commission adopted Regulation 5002(b)(1) in 2012 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. Regulation 5002(b)(1) has since been applied in advisory opinions issued to address factual scenarios analogous to those set forth by the instant Petitioner. See A.O. 2017-44 (applying the Regulation 5002(b)(1) exception, a member of the Barrington Committee on Appropriations was not barred from serving thereon and was 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); 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, in matters where the School Committee and/or the Redesign Committee go before the Town Council, participation by both he and his wife will be solely in their capacities as duly elected officials in the Town of Westerly, and that neither he nor his wife has any personal financial interest in such matters, other than as general taxpayers, property owners, and as the parents of schoolchildren, which are the same interests shared by other members of the School Committee and the Town Council. Based upon the facts as represented by the Petitioner, and consistent with the above analysis and prior advisory opinions, it is the opinion of the Ethics Commission that the Petitioner is not required by the Code of Ethics to recuse when his wife appears before the Town Council in her official capacity as a member of the School Committee and/or as co-chair of the Redesign Committee, provided that neither he nor she has a personal financial interest in any matter under discussion and that all of the other 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. 2017-44 A.O. 2016-11 Keywords: Conflict of Interest Family Nepotism [1] The Petitioner previously served on the Town Council from 2002-2014. [2] In May 2018, the Ethics Commission codified the Code of Ethics into the Rhode Island Code of Regulations (“RICR”), a uniform state code containing the rules and regulations of the various Rhode Island agencies. In order to do so, the Ethics Commission reformatted and renumbered the Code of Ethics. As a result, Commission Regulation 36-14-5004 now corresponds to Regulation 502-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004). [3] Commission Regulation 5002 now corresponds to Regulation 520-RICR-00-00-1.2.1 (Additional Circumstances Warranting Recusal (36-14-5002).