Advisory Opinion No. 2019-16 Rhode Island Ethics Commission Advisory Opinion No. 2019-16 Approved: February 26, 2019 Re: Ruth Strach QUESTION PRESENTED: The Petitioner, a member of the Scituate Home Rule Charter Commission, a municipal elected position, seeks an advisory opinion regarding what limitations, if any, the Code of Ethics places upon her carrying out her duties as a member of the Charter Commission, given that she is also an appointed member of the Scituate Land Trust, and her husband is an appointed member of the Scituate Conservation Commission. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Scituate Home Rule Charter Commission, a municipal elected position, is not prohibited by the Code of Ethics from participating in matters involving the Scituate Land Trust and/or the Scituate Conservation Commission, notwithstanding that the Petitioner is a member of the Land Trust and her husband is a member of the Conservation Commission, because it is not reasonably foreseeable that either the Petitioner or her husband will be directly financially impacted by reason of her official activity. The Petitioner was elected to the Scituate Home Rule Charter Commission (“Charter Commission”) in June of 2018. She states that the Charter Commission has been tasked with developing the first Home Rule Charter (“Charter”) for the Town of Scituate (“Town”), adding that, if the Charter is approved by the general electorate in November of 2020, its provisions will take effect in January of 2021. The Petitioner represents that she currently serves as an appointed member of the Scituate Land Trust (“Land Trust”), her term for which will expire in October of 2019. The Petitioner further represents that her husband currently serves as a member of the Scituate Conservation Commission (“Conservation Commission”), his term for which will also expire in October of 2019. The Petitioner explains that the Land Trust was established for purposes of acquiring and preserving open spaces, natural and scenic areas, drinking water sources, farmland, forests, and historic sites in the Town. She further explains that the Conservation Commission is an advisory board that promotes and develops natural resources and preserves natural aesthetic areas within the Town through research projects and educational programs. The Petitioner states that neither she nor her husband receives compensation for the work they perform in their respective appointed positions. The Petitioner further states that the Charter Commission is not likely to address compensation for members of either the Land Trust or the Conservation Commission because, historically, these are not the sorts of boards and commissions to which compensation would apply, and there are no plans by the Charter Commission to change that. The Petitioner adds that, while the Charter will address issues affecting both the Land Trust and Conservation Commission such as the number of members, duties, and length of terms, the Charter in its present draft form specifically states that members of the Land Trust and Conservation Commission shall serve without compensation, and that will not change. 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 public 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). 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). At issue in the instant matter is whether there exists a substantial conflict of interest on the part of the Petitioner in the form of an anticipated direct financial impact upon her or her husband by reason of her official activity as a member of the Charter Commission. The Ethics Commission opined in General Commission Advisory No. 2009-2 that a public official may participate in actions that involve no resulting increase or decrease in compensation or benefits, but merely maintains a status quo. The Ethics Commission further opined in General Commission Advisory No. 2009-2 that a person subject to the Code may not vote on any increase or decrease in compensation for herself that will take effect prior to the next election cycle, or before the end of her own term of office. That extends to voting on any increase or decrease in compensation for a spouse that would take effect prior to the next election cycle, or before the end of the spouse’s term of office. See Advisory Opinion 2019-13 (member of the Scituate Home Rule Charter Commission was required by the Code of Ethics to recuse from participating in any potential discussions and/or 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 on that committee). Here, the Petitioner represents that there are no plans for the Charter Commission to incorporate compensation for members of the Land Trust or the Conservation Commission who, historically, have served without pay. Even if the Charter Commission were to incorporate compensation for members of the Land Trust and/or the Conservation Commission, it would not be implemented until January of 2021, more than one year after the Petitioner’s present term as a member of the Land Trust expires and her husband’s present term as a member of the Conservation Commission expires. Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from participating as a member of the Charter Commission in matters involving the Land Trust and/or the Conservation Commission, notwithstanding that the Petitioner is a member of the Land Trust and her husband is a member of the Conservation Commission. The Petitioner is cautioned, however, that if any matters should come before her as she is carrying out her duties in either of her public roles which present any other potential conflict of interest not otherwise contemplated in this advisory opinion, or circumstances become such that it is reasonably foreseeable that there will be a direct financial impact upon the Petitioner and/or her husband by reason of the Petitioner’s official activity as a member of the Charter Commission, she should either request further advice from this Commission or exercise the recusal provision found at 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) § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7 (a) Commission Regulation 520-RICR-00-00-1.3.1 Related Advisory Opinions: A.O. 2019-13 A.O. 2017-15 General Commission Advisory No. 2009-2 Keywords: Conflict of Interest Nepotism