Advisory Opinion No. 2019-13 Rhode Island Ethics Commission Advisory Opinion No. 2019-13 Approved: February 5, 2019 Re: Mary Manning-Morse QUESTION PRESENTED: The Petitioner, a member of the Scituate Home Rule Charter Commission and the Scituate School Committee, both municipal elected positions, seeks an advisory opinion as to what limitations, if any, the Code of Ethics places upon her (i) simultaneously serving on both the Charter Commission and the School Committee; (ii) serving on the Charter Commission, given that her husband is a member of the Hope Village Overlay District Review Committee in Scituate; and (iii) continuing to volunteer her time as a math tutor to a Scituate High School student. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Scituate Home Rule Charter Commission and the Scituate School Committee, both municipal elected positions, is not prohibited by the Code of Ethics from simultaneously serving on both the Charter Commission and the School Committee, provided she recuse from participating in Charter Commission discussions and decision-making regarding compensation for members of the School Committee. The Petitioner is not prohibited by the Code of Ethics from serving on the Charter Commission, notwithstanding that her husband is a member of the Hope Village Overlay District Review Committee in Scituate, provided that she recuse from participating in any potential Charter Commission discussions and decision-making regarding compensation for members of the Hope Village Overlay District Review Committee to be implemented prior to the end of her husband’s present term of appointment. Finally, the Petitioner is not prohibited from tutoring a Scituate High School student, notwithstanding the Petitioner’s membership on the School Committee. The Petitioner was elected to the Scituate Home Rule Charter Commission (“Charter Commission”) on June 28, 2018. She states that the Charter Commission has been tasked with developing the first Home Rule Charter (“Charter”) for the Town of Scituate (“Town”). The Petitioner adds that, if the Charter is approved by the general electorate in November of 2020, its provisions will take effect at the beginning of January in 2021. The Petitioner was also elected to serve a four-year term on the Scituate School Committee (“School Committee”) on November 6, 2018. She represents that her husband presently serves as a member of the Hope Village Overlay District Review Committee (“Overlay Committee”) appointed by the Town Council, adding that the purpose of the Overlay Committee is to help maintain the historic character of Hope Village. The Petitioner further represents that the Overlay Committee is among the boards and commissions to be addressed by the Charter. Finally, the Petitioner states that in her private capacity, following her retirement from teaching, she began volunteering her time through a private arrangement with her neighbors to tutor the neighbors’ foster child in Math. She further states that the child presently attends Scituate High School, and the tutoring takes place at the local library. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, 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 she 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). A “person within her . . . family” includes the official’s spouse. Section 36-14-2(1); Regulation 520-RICR-00-00-1.3.1(A)(2) -Prohibited Activities – Nepotism (36-14-5004) (“Regulation 1.3.1”). Additionally, the Code of Ethics prohibits a public official from using her public office or confidential information received through her public office to obtain financial gain for herself, a family member, a business associate, or any business by which she is employed or which she represents. Section 36-14-5(d); Regulation 1.3.1(B)(1). Simultaneous Service on the Charter Commission and the School Committee In prior advisory opinions, the Ethics Commission has consistently concluded that the Code of Ethics does not create an absolute bar against a person’s simultaneous service in two different governmental entities, even if they are within the same municipality. See A.O. 2017-15 (opining that the Interim Town Manager for the Town of New Shoreham who was also the Chairperson of the New Shoreham Library Board of Trustees was not prohibited by the Code of Ethics from simultaneously serving in both positions). However, as a member of the Charter Commission, were the Petitioner to participate in discussions and decision-making regarding compensation for members of the School Committee to be implemented at the beginning of January in 2021, she would in fact derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity, given that her present term on the School Committee extends until the next election in November of 2022. See General Commission Advisory No. 2009-2 (opining that a person subject to the Code may not vote on any increase that will take effect prior to the next election cycle, or before the end of their own term of office; nor may the official vote or take action that results in a loss of compensation or benefits to herself). That being the case, it is the opinion of the Ethics Commission that, while the Code of Ethics does not prohibit the Petitioner from simultaneously serving on both the Charter Commission and the School Committee, the Code does prohibit her from participating in Charter Commission discussions and decision-making regarding compensation for members of the School Committee and, as such, the Petitioner is required to recuse in accordance with section 36-14-6. Service on the Charter Commission While Husband Serves on the Overlay Committee Regulation 1.3.1(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, in this case her husband, is a party to or a participant in such matter or will derive a direct monetary gain or suffer a direct monetary loss. As a member of the Charter Commission, were the Petitioner to participate in any potential discussions and decision-making regarding compensation for members of the Overlay Committee to be implemented prior to the next election cycle or before the end of her husband’s term of appointment, her husband would in fact derive a direct monetary gain or suffer a direct monetary loss by reason of the Petitioner’s official activity. That being the case, and consistent with General Commission Advisory No. 2009-2 cited above, it is the opinion of the Ethics Commission that, while the Code of Ethics does not prohibit the Petitioner from serving on the Charter Commission while her husband serves on the Overlay Committee, the Code does prohibit her from participating in any potential Charter Commission discussions and decision-making regarding compensation for members of the Overlay Committee to be implemented prior to the end of her husband’s present term of appointment. Under those circumstances, the Petitioner would be required to recuse in accordance with section 36-14-6. Tutoring a Student While Serving on the School Committee Central to the Code of Ethics is the core principle that a public official may not take any action, or in any way use her position, to obtain financial gain for herself. This fundamental concept flows from the general conflict of interest prohibition found in section 36-14-5(a), and further defined in section 36-14-7, as well as the prohibition on the use of office to obtain financial gain found in section 36-14-5(d). Furthermore, persons subject to the Code may not accept other employment that will impair their independence of judgment as to their official duties, nor disclose confidential information acquired in the course of their official duties for pecuniary gain. Section 36-14-5(b) and (c). The Petitioner states that, in her private capacity, following her retirement from teaching, she began volunteering her time through a private arrangement with her neighbors to tutor the neighbors’ foster child in math. The child presently attends Scituate High School, and the tutoring occurs at the local library.Based on the facts as presented by the Petitioner, there is no indication of any link, financial or otherwise, between her status as a School Committee member and her volunteer work as the math tutor of a Scituate High School student. There is likewise no indication that the tutoring would impair the Petitioner’s independence of judgment as to her official duties as a member of the School Committee or involve the disclosure of confidential information acquired during the course of her service for pecuniary gain. It is therefore the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from tutoring a Scituate High School student, notwithstanding the Petitioner’s service on 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: § 36-14-2(1) § 36-14-5(a) § 36-14-5(b) § 36-14-5(c) § 36-14-5(d) § 36-14-6 § 36-14-7 Commission Regulation 520-RICR-00-00-1.3.1 Related Advisory Opinions: A.O. 2017-15 General Commission Advisory No. 2009-2 Keywords: Conflict of Interest Employment Family Member Recusal