Advisory Opinion No. 2019-14 Rhode Island Ethics Commission Advisory Opinion No. 2019-14 Approved: February 5, 2019 Re: Erika McCormick QUESTION PRESENTED: The Petitioner, a member of the Scituate Home Rule Charter Commission and the Scituate School Committee, both municipal elected positions, who in her private capacity is the coordinator of a federal grant that funds her work to further the initiatives of the Scituate Prevention Partnership, of which she is a member, 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 Scituate Town Council; (iii) serving on the School Committee, given that her husband is a member of the Town Council; and (iv) participating in School Committee discussions and decision-making relative to matters involving the Scituate Prevention Partnership. 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, who in her private capacity is the coordinator of a federal grant that funds her work to further the initiatives of the Scituate Prevention Partnership, of which she is a member, is not prohibited by the Code of Ethics from simultaneously serving on both the Charter Commission and the School Committee, provided that she recuse from participating in Charter Commission discussions and decision-making regarding compensation for members of the School Committee given that she is a member, and for members of the Scituate Town Council, given that her husband is a member, unless said compensation is not to be implemented until after the next election cycle or end of term of office for either or both of them. The Petitioner is not prohibited by the Code of Ethics from participating in the School Committee’s discussions and decision-making relative to matters involving the Town Council, provided that all requirements of Regulation 520-RICR-00-00-1.2.1(B)(1) are satisfied. The Petitioner is prohibited by the Code of Ethics from appearing before the School Committee on behalf of the Scituate Prevention Partnership, and must recuse from participating in any matter for which a member or representative of that coalition appears on its behalf. The Petitioner must further recuse from discussions and decision-making regarding matters involving the Scituate Prevention Partnership for as long as she is a member. 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”) for consideration by voters in November of 2020. The Petitioner was also elected to serve a four-year term on the Scituate School Committee (“School Committee”) on November 6, 2018, the same date that her husband was elected to serve a two-year term on the Scituate Town Council (“Town Council”). The Petitioner explains that topics under consideration by the Charter Commission that apply to both the School Committee and the Town Council include the number of members, length of terms, term limits, the filling of vacancies, and compensation. She adds that topics under consideration that are uniquely applicable to the School Committee include qualifications, powers and duties, and whether ballots will be partisan or non-partisan. The Petitioner represents that topics under consideration that are uniquely applicable to the Town Council include quorums, procedure for meetings, and forfeiture of office. The Petitioner represents that in her private capacity, under a contract between the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (“BHDDH”) and the Town, she is the coordinator of a federal grant managed by BHDDH and disbursed to the Town. The Petitioner further represents that she is also a member and former Director of the Scituate Prevention Partnership (“SPP”), a local independent coalition which focuses on reducing substance abuse among youth in the Town. The Petitioner adds that it was the SPP that recommended her to BHDDH for the coordinator position. She explains that in order to receive funding under the grant, the Town is required to have the support of a local coalition, in this case, the SPP. The Petitioner states that she coordinates her work under the grant with the SPP. She further states that she reports to the SPP on a regular basis as to the progress of initiatives funded by the grant, and that a representative from the SPP reports to the School Committee on a regular basis regarding the same. The collection of data by the SPP and its members on initiatives funded by the grant allows the SPP to seek additional grant money to fund additional initiatives. 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). Based upon the facts as represented by the Petitioner, her duties as a member of the Charter Commission and as a member of the School Committee appear for the most part to be separate and distinct. 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 prior to the next election cycle or before the end of her term of office, she would in fact derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. 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 the Code of Ethics does not prohibit the Petitioner 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, unless said compensation is not to be implemented until after the next election cycle or end of her term of office. Under circumstances warranting recusal, the Petitioner would be required to do so in accordance with section 36-14-6. Service on the Charter Commission While Husband Serves on the Town Council 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 discussions and decision-making regarding compensation for members of the Town Council to be implemented prior to the next election cycle or before the end of her husband’s term of office, 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 the Code of Ethics does not prohibit the Petitioner from serving on the Charter Commission while her husband serves on the Town Council, provided that she recuse from participating in Charter Commission discussions and decision-making regarding compensation for members of the Town Council, unless said compensation is not to be implemented until after the next election cycle or the end of her husband’s term of office. Under circumstances warranting recusal, the Petitioner would be required to do so in accordance with section 36-14-6. Service on the School Committee While Husband Serves on the Town Council Section 36-14-5 and Regulation 1.3.1 clearly prohibit the Petitioner from participating in any Town Council matters in which she and/or her husband are likely to derive a direct monetary gain or suffer a direct monetary loss. Additionally, Regulation 520-RICR-00-00-1.2.1 (“Regulation 1.2.1”) 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 1.2.1(B)(1), which 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 1.2.1(B)(1) in 2012 as an exception to the regulation’s general rule requiring recusal when an official’s family member appears before the official’s state or municipal agency. This exception has since been applied in advisory opinions issued to address factual scenarios analogous to those set forth by the instant Petitioner, most recently in one issued to her husband. See A.O. 2019-02 (opining that member-elect of the Scituate Town Council was not prohibited by the Code of Ethics from participating in the Town Council’s discussions and decision-making relative to matters involving the Scituate School Committee, notwithstanding that his wife was a member-elect of the School Committee, provided that all requirements of Regulation 520-RICR-00-00-1.2.1(B)(1) were satisfied). The Petitioner represents that, in matters where the Town Council goes before the School Committee, participation by both she and her husband will be solely in their capacities as duly elected officials in the Town, and that neither she nor her husband has any personal financial interest in such matters other than as general taxpayers and property owners. 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 her husband appears before the School Committee in his official capacity as a member of the Town Council, provided that all of the requirements of Regulation 1.2.1(B)(1) are satisfied. In the future, if additional factual scenarios occur that were not contemplated by this advisory opinion, the Petitioner should recuse in accordance with section 36-14-6 or seek further advice from the Ethics Commission. Participation on School Committee in Matters Involving the Scituate Prevention Partnership Pursuant to sections 36-14-5(e)(1) and (2), a person subject to the Code may not represent herself or any other person before any municipal agency of which she is a member. Additionally, the Code requires a person subject to the Code to recuse from voting or participating in the consideration and disposition of a matter involving a business associate. Section 36-14-5(f)(2); Commission Regulation 520-RICR-00-00-1.2.1(A)(2) – Additional Circumstances Warranting Recusal (36-14-5002). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A “person” is defined as an individual or business entity. Section 36-14-2(7). A business is defined as “a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, trust or any other entity recognized in law through which business for profit or not for profit is conducted.” Section 36-14-2(2). The Commission has previously opined that persons are “business associates” of the entities, including not-for-profit entities, for which they serve as either officers or members of the Board of Directors, or in some other leadership position that permits them to affect the financial objectives of the organization. See, e.g., A.O. 2014-14 (opining that the Director of the Rhode Island Department of Environmental Management (“DEM”), who was also a Director of the Rhode Island Boy Scouts (“Boy Scouts”), was a business associate of the Boy Scouts and was thus required to recuse from participating in any DEM decisions that would financially impact the Boy Scouts, as well as from any matters in which a Boy Scout representative appeared to represent the organization’s interests). While the Petitioner is no longer the Director of the SPP, her position as a member and coordinator of the grant continue to link her and the SPP as business associates, given that they remain joined together to achieve the common financial objective of securing additional grant money to support the initiatives of the SPP. Given the circumstances as presented by the Petitioner, it is the opinion of the Ethics Commission that the Petitioner may not appear before the School Committee as a representative of the SPP, and must recuse from participating in any matter where a member of the SPP appears before the School Committee to represent the interests of the SPP. The Petitioner must also recuse from all discussions and decision-making regarding any matters involving the SPP or the BHDDH grant for as long as she is a member of the SPP or coordinator of the grant. All recusals by the Petitioner shall be 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: § 36-14-2(1) § 36-14-2(2) § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-5(e) § 36-14-5(f) § 36-14-6 § 36-14-7(a) Regulation 520-RICR-00-00-1.2.1 Regulation 520-RICR-00-00-1.3.1 Related Advisory Opinions: A.O. 2019-02 A.O. 2017-15 A.O. 2014-14 General Commission Advisory No. 2009-2 Keywords: Family Member Nepotism Recusal Business Associate