Advisory Opinion No. 2019-18 Rhode Island Ethics Commission Advisory Opinion No. 2019-18 Approved: February 26, 2019 Re: Nancy A. Beye QUESTION PRESENTED: The Petitioner, a member of the Jamestown Town Council, a municipal elected position, requests an advisory opinion regarding what restrictions, if any, the Code of Ethics places on her participation in Town Council discussions and decision-making relative to the budgets of the Jamestown Fire Department, the Police Department, and/or the Town, given that the Petitioner is a volunteer member of the Fire Department and that her son is a police dispatcher in the Town. RESPONSE: It is the opinion of the Ethics Commission that the Petitioner, a member of the Jamestown Town Council, a municipal elected position, is prohibited by the Code of Ethics from participating in Town Council discussions and decision-making relative to line items in the budgets for the Jamestown Fire Department, the Police Department, and the Town that would financially impact the Petitioner or her son. However, the Petitioner need not recuse from budgetary line items that do not financially impact her or her son, even though they may impact other police or fire department operations or personnel, and may participate in the Town Council’s vote to approve or reject as a whole the budgets for the Fire Department, the Police Department and/or the Town. The Petitioner is a member of the Jamestown Town Council (“Town Council”) and a volunteer member of the Jamestown Fire Department (“Fire Department”). She states that her son is employed by the Town of Jamestown (“Town”) as a civilian police dispatcher. The Petitioner represents that, as a member of the Fire Department, she receives a tax abatement in the amount of $750 per year, provided she remains a “member in good standing,” and an incentive check in the amount of up to $2,500 per year depending on her level of certification and her maintaining a duty shift. The Petitioner states that she will recuse from Town Council discussions and decision-making regarding matters involving the Fire Department’s tax abatement or the incentive check. Based on these facts, she asks what restrictions, if any, the Code of Ethics places on her participation in Town Council discussions and decision-making relative to the budgets of the Fire Department, the Police Department, and/or the Town. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her 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 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). The Code of Ethics also prohibits a public official from using her public office or confidential information received through her public office to obtain financial gain for herself or her family, business associate, or any business by which she is employed or which she represents. Section 36-14-5(d). Although section 36-14-5(a) of the Code of Ethics prohibits the Petitioner from taking any official action to financially benefit herself, it does not prohibit her from participating in the Town Council’s vote on other aspects of the budgets of the Fire Department and/or the Town or on those budgets as a whole. See A.O. 2018-29 (opining that a legislator serving in the Rhode Island House of Representatives could participate in discussions and voting by the House of Representatives relative to the FY2019 State Budget as a whole, but had to recuse from participating in any discussions or voting on particular budget amendments or line-items that impacted or specifically addressed his employer’s contracts or finances). Further, in addition to section 36-14-5(a) which prohibits the Petitioner from taking any official action to financially benefit her son, Commission Regulation 520-RICR-00-00-1.3.1 Prohibited Activities Nepotism (36-14-5004) (“Regulation 1.3.1”), prohibits the Petitioner from participating in any matter as part of her public duties if she has reason to believe or expect that her son 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.” Regulation 1.3.1(B)(1). More specifically, Regulation 1.3.1(B)(3) states in pertinent part: a. General Prohibition. No person subject to the Code of Ethics shall participate 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 or her family or a household member. b. Specific Line Items. Notwithstanding the prohibition set forth in § 1.3.1(B)(3)(a) of this Part, a person subject to the Code of Ethics may, only in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion, participate in discussion or decision-making relative to a budgetary line item that addresses or affects the employment, compensation or benefits of any person within his or her family or a household member 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. c. Vote on Entire Budget. Notwithstanding the prohibition set forth in § 1.3.1(B)(3)(a) of this Part, a person subject to the Code of Ethics may participate in discussion or decision-making relative to approving or rejecting the entire budget as a whole, provided that the person within his or her family or household member 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. Therefore, the Petitioner is prohibited by the Code of Ethics from participating in any Town Council discussions or decision-making relative to line items in the Police Department or Town budgets that would financially impact her son. Such matters include, but are not limited to, her son’s employment, compensation or benefits. However, the Petitioner is permitted to participate in the Town Council’s vote to approve or reject those budgets as a whole. See A.O. 2009-12 (opining that a member of the Coventry Town Council whose spouse was a lieutenant in the Coventry Police Department was prohibited from participating in discussion or decision-making relative to budgetary line-items that would address her spouse’s employment, but could participate in discussion or decision-making relative to approving or rejecting the entire police department budget as a whole); 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). Because the Petitioner’s request lacks specificity regarding particular budgetary matters pending before the Town Council involving the Fire Department, the Police Department and/or the Town, this advisory opinion only offers general guidance regarding her ability to participate in Town Council discussions and decision-making relative to the Fire Department, the Police Department and the Town budgets. It is the opinion of the Ethics Commission that the Petitioner is prohibited from participating in Town Council discussions and decision-making relative to budgetary line items that would financially impact the Petitioner or her son, but she may participate in budgetary line items that do not financially impact her or her son. Furthermore, the Petitioner may participate in the Town Council’s vote to approve or reject as a whole the budgets for the Fire Department, the Police Department or the Town. Although the Petitioner is permitted to participate in the overall vote to approve or reject the Fire Department, Police Department and Town budgets as a whole, the Commission is aware that a general discussion can quickly devolve into a more narrow review of specific items. The Petitioner must be vigilant to identify such instances where a general conversation begins to focus on issues that are likely to financially impact her or her son. In such circumstances, the Petitioner must recuse from further participation pursuant to section 36-14-6, and/or seek further guidance from the Ethics Commission. 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 520-RICR-00-00-1.3.1 Related Advisory Opinions: A.O. 2018-29 A.O. 2009-12 A.O. 2007-30 Keywords: Budgets Family: Public Employment Recusal Nepotism