Advisory Opinion No. 2019-15 Rhode Island Ethics Commission Advisory Opinion No. 2019-15 Approved: February 5, 2019 Re: James H. Brady, Jr. QUESTION PRESENTED : The Petitioner, a member of the Scituate Town Council, a municipal elected position, and a retired member of the Scituate Police Department , requests an advisory opinion regarding 1) whether he may continue to serve on the Scituate Police Department ’s road detail list , given his position on the Town Council ; 2) what restrictions the Code of Ethics places on him in participating in Town Council discussions and decision-making relative to matters involving the Scituate Police Department, given that he participates in its Voluntary Road Detail Program for Retirees and its private Scituate Police Pension and given that his son is a Scituate police officer; and 3) whether he is prohibited by the Code of Ethics from serving as Town Council P resident, Vice President, or President Pro Tempore. RESPONSE : It is the opinion of the Rhode Island Ethics Commission that 1) the Petitioner may continue to serve on the Scituate Police Department’s road detail list, notwithstanding his position on the Town Council ; 2) the Petitioner is prohibited by the Code of Ethics from participating in any Town Council matters relative to the Scituate Police Department in which he or his son will be financially impacted, ho wever, the Petitioner is permitted to participate in the Town Council’s discussion s and decision-making relative to approving or rejecting the entire Poli ce Department budget as a whole; and 3) the Petitioner is not prohibited by the Code of Ethics from serving as a Town Council President, Vice President, or President Pro Tempore . The Petitioner states that he was elected to the Scituate Town Council (“Town Council” ) in November 2018 and that he is a retired Scituate p olice o fficer. The Petitioner further states that the Scituate Police Department (“Police Department”) has a Voluntary R oad Detail Program for Retirees, adding that he has been on the Police Department’s Road Detail List (“detail list”) for the past two years. The Petitioner explains that to be eligible to serve on the detail list, retired police officers must satisfy certain criteria enumerated in a Scituate town ordinance. The Petitioner states that any retired police officer who satisfies the criteria is placed on the detail list by the Chief of Police , until removed, and that no annual re-application is required. The Petitioner represents that for the detail work performed he is paid by the Police Department and is issued a 1099 Form. The Petitioner further informs that his son is a Scituate police officer . The Petitioner explains that the police budget is normally approved by the Town Council. Additionally, the Petitioner states that he participates , in the private Scituate Police Pension, which has been closed to new hires since 2016 , and that his son does not . The Petitioner represents that he will recuse from any Town Council discussions and decision-making relative to matter s involving the private police pension. 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). Service on the Detail List Commission Regulation 520-RICR-00-00-1.5.4-Municipal Official Revolving Door ( 36-14-5014 ) (“ Regulation 1.5.4 ”) provides that no municipal elected official shall seek or accept employment with any municipal agency in the municipality in which said official serves, other than employment which was held at the time of the official’s election or appointment to office. The term “employment” as used in this section expressly includes service as an independent contractor to the municipality or municipal agency, a n d thus, include s his services on the detail list. See Regulation 1.5.4(A)(1). Here, Regulation 1.5.4 ’s prohibition against municipal employment or contracting by elected officials would not apply because the Petitioner has served on the detail list continuously since early 2017, prior to his election to the Town Council in November of 2018. Regulation 1.5.4 expressly excludes “employment which was held at the time of the official’s election to office.” See A.O. 2008-72 (opining that an East Providence City Council member could continue to serve on t he City of East Providence Tow L ist, notwithstanding his position as a municipal elected official, as it was “employment” which preceded his election to office). Accordingly, based upon the clear language of Regulation 1.5.4 , it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from continuing his service on the detail list. Participation in Matters Involving the Police Department The Petitioner requests the guidance of the Ethics Commission regarding whether and to what extent he may participate in the Town Council’s discussions and decision-making relative to matters involving the Police Department , given that he serves on the Police Department’s detail list and that his son is a Scituate police officer . Under the Code of Ethics, a public official must recuse himself from participation when his business associate or employer appears or presents evidence or arguments before his state or municipal agency. See Commission Regulation 1.2.1(A)(2) - Additional Circumstances Warranting Recusal (36-14-5002) (“Regulation 1.2.1 ”); section 36-14-5(f). 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). 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 a business entity.” Section 36-14-2(7). The Commission has consistently concluded in prior advisory opinions that the Code of Ethics does not consider the relationship between a public official and a public body to be that of “business associates.” See , e.g. , A.O. 2012-1 (opining that a member of the Rhode Island Transportation Advisory Committee (“TAC”), who was also a member of the Rhode Island Board of Governors for Higher Education, could participate in TAC discussions and votes concerning funding for institutions subject to the jurisdiction of the Board of Governors because , under the Code of Ethics , neither the Board of Governors nor the TAC were considered “businesses”); A.O. 2011-29 (opining that a member of the Portsmouth Planning Board, who was also a civil engineer for the Rhode Island Department of Transportation (“DOT”), could participate in the Planning Board’s consideration of a development proposal, notwithstanding that in her capacity as a DOT engineer she had been reviewing the same property to ensure that the state’s property interests were protected). Thus, it is the opinion of this Commission that the relationship between the Petitioner and the Police Department does not constitute a “business association ” under the Code, notwithstanding the Petitioner’s service on the detail list. Accordingly, the Petitioner is not prohibited from participating in Town Council matters involving the Police Department generally . The Petitioner is, however, required to recuse from matters that financially impact himself, or matters or issues related to the detail list. See §§ 36-14-5(a), (d) and -7(a). Additionally, the Petitioner represents that his son is a Scituate police officer and that the Town Council reviews and approves the Police Department’s budget. Commission Regulation 1.3.1 - Prohibited Activities - Nepotism ( 36-14-5004 ) (“Regulation 1.3.1 ”) sets forth specific nepotism provisions that apply to any person within the Petitioner’s family. In general, Regulation 1.3.1(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.” The definition of “any person within his [] family” specifically includes “son.” Regulation 1.3.1( A )( 2 ). Furthermore, Regulation 1.3.1(B)(3)(a ) 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 1.3.1(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.” In the present matter, the Code of Ethics prohibits the Petitioner from participating in the Town Council’s discussions and decision-making regarding any matter that involves his son directly or would result in a financial benefit or detriment to his son, or in which his son would obtain an employment advantage. With respect to the Police Department’s budget, the Petitioner is also prohibited from participating in the Town Council’s discussions and decision-making relative to line items that “would address or affect the employment, compensation or benefits” of his son. Regulation 1.3.1(B)(3)(a). However, with no specific information as to how the Town Council reviews each department’s budget, the Commission is unable to determine whether a particular budget item will impact the Petitioner’s son financially. Accordingly, the Petitioner is advised that he must conduct a matter-by-matter analysis of whether the Town Council’s discussions and decision-making relating to a particular line item will affect his son’s terms of employment, compensation or benefits. If a line item will financially impact his son, the Petitioner must recuse and/or seek further guidance from the Ethics Commission. Notice of recusal shall be filled with the Ethics Commission in accordance with section 36-14-6. However, pursuant to Regulation 1.3.1(B)(3)(c), the Petitioner is permitted to participate in the Town Council’s discussions and decision-making relative to approving or rejecting the entire Police Department budget as a whole. The basis for allowing such participation is the proposition 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 under the Code of Ethics. 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 could vote on the budget as a whole). Although the Petitioner is permitted to participate in the overall vote to approve or reject the Police Department’s budget as a whole, the Commission is aware that a general discussion can quickly devolve into a more narrow review of specific items. Accordingly, the Petitioner must be vigilant about identifying such instances where a general conversation begins to focus on specific issues that are likely to financially impact his son. In such circumstances, the Petitioner must recuse from further participation in accordance with section 36-14-6. In summary, it is the opinion of the Ethics Commission that s ection 36-14-5 and Regulation 1.3.1 clearly prohibit the Petitioner from participating in any Town Council matters in which he or his son will be financially impacted, positively or negatively, including, but not limited to, matters relating to the Petitioner’s and /or his son’s compensation, benefits, supervision or job performance, the road detail list, and the detail work in general . However, the Petitioner is permitted to participate in the Town Council’s discussion and decision-making relative to approving or rejecting the entire Police Department budget as a whole. The Petitioner is encouraged to seek further guidance from the Ethics Commission concerning his ability to participate in specific Town Council matters as they arise. Service a s Town Council President, Vic e President, or President Pro Tempore The Petitioner seeks the guidance of the Ethics Commission regarding whether the Code of Ethics prohibits him from serving as Council President, Council Vice President, or Council President Pro Tempore. The provisions of the Code of Ethics apply equally to members and to officers of a public body. See A.O. 2011-12. (opining that because the provisions of the Code apply equally to members and officers of a public body, a member of the Scituate Town Council could serve as Council President, Council Vice President, or Council President Pro Tempore, notwithstanding the fact that his son was an attorney at the law firm that served as Town Sol icitor, provided that he recused from participating in and voting on Town Council decisions that would financially impact his son). Therefore, the Petitioner’s elevation from a general Town Council member to Council President, Council Vice President, or Council President Pro Tempore would not further restrict the performance of the Petitioner’s Town Council duties under the Code of Ethics . Accordingly, it is the opinion of the Ethics Commission that the Petitioner may serve as Council President, Council Vice President, or Council President Pro Tempore . 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(2) § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-5(f) § 36-14-6 § 36-14-7(a) Commission Regulation 520-00-00-1.2.1 Commission Regulation 520-00-00-1.3.1 Commission Regulation 520-00-00-1.5.4 Related Advisory Opinions : A.O. 2012-1 A.O. 2011-29 A.O. 2011-12 A.O. 2008-72 A.O. 2007-30 Keywords : Private Employment Nepotism