Advisory Opinion No. 2019-2 Rhode Island Ethics Commission Advisory Opinion No. 2019-2 Approved: January 8, 2019 Re: Timothy J. McCormick QUESTION PRESENTED: The Petitioner, a member-elect of the Scituate Town Council, seeks an advisory opinion regarding whether the Code of Ethics prohibits him from participating in discussions and decision-making relative to matters involving: (i) the Scituate School Committee, given that his wife is a member-elect of the School Committee; (ii) the Scituate Prevention Partnership, given that his wife is the Director of that coalition; and (iii) the payment of invoices submitted to the Town of Scituate by his wife as an independent contractor. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member-elect of the Scituate Town Council, is 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 is a member-elect of the School Committee, provided that all requirements of Regulation 520-RICR-00-00-1.2.1(B)(1) [Additional Circumstances Warranting Recusal (36-14-5002)] are satisfied. However, the Petitioner is prohibited by the Code of Ethics from participating in discussions and decision-making relative to matters involving the Scituate Prevention Partnership, given that his wife is the Director of that coalition. The Petitioner is further prohibited by the Code of Ethics from participating in discussions and decision-making relative to the payment of invoices submitted to the Town of Scituate by his wife as an independent contractor. The Petitioner was elected to the Scituate Town Council (“Town Council”) on November 6, 2018, and is expected to be sworn in on January 8, 2019. The Petitioner’s wife was elected to the Scituate School Committee (“School Committee”) on November 6, 2018, and is expected to be sworn in on January 8, 2019. The Petitioner represents that neither he nor his wife has any personal financial interest in School Committee matters, other than as general taxpayers and property owners. The Petitioner represents that his wife is the Director of the Scituate Prevention Partnership (“SPP”), a local coalition which focuses on reducing substance abuse among the youth of the Town, adding that the work of the SPP is 100% funded through federal grant money managed by the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (“BHDDH”). The Petitioner offers examples of circumstances under which his wife might appear before the Town Council in her capacity as Director of the SPP. Such examples include, but are not limited to, (1) to ask the Town Council to consider addressing the issue of compassion centers in Town; (2) in an advisory capacity for purposes of sharing information; and (3) to discuss the unintended consequences of the legalization of marijuana. The Petitioner states that his wife’s position with the SPP will terminate on June 30, 2019. The Petitioner explains that his wife has been designated the Coordinator of the Partnerships for Success (“PFS”) grant in a contract between BHDDH and the Town. The Petitioner adds that, as the Coordinator for the PFS grant, his wife is considered an independent contractor for the Town. The Petitioner states that his wife earns a set hourly rate and her compensation is wholly funded by the PFS grant. The Petitioner explains that, in order to be compensated, his wife submits invoices for her hours worked and receipts for her expenses to the Town for payment, for which the Town is later reimbursed by BHDDH using PFS grant funds. The Petitioner states that when the Town Council votes on invoices to be paid by the Town, the invoices are submitted in bulk and include those from his wife. Under the Code of Ethics, a public official or employee may not participate in any matter in which he has an interest, financial or otherwise, which 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 occurs if he has reason to believe or expect that he, any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity or employment. Section 36-14-7(a). A “person within his . . . family” includes the official or employee’s spouse. Section 36-14-2(1); Regulation 520-RICR-00-00-1.3.1(A)(2) (“Regulation 1.3.1”).[1] The public official or employee is further prohibited from using his public office or position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate or a family member. Section 36-14-5(d). Matters Involving Scituate School Committee Regulation 1.3.1 sets forth specific nepotism provisions which are applicable to matters that involve or impact any person within the Petitioner’s family or any person who resides in his household. 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, in this case his wife, 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. Section 36-14-5 and Regulation 1.3.1 clearly prohibit the Petitioner from participating in any School Committee matters in which he and/or his wife 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”)[2] 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 what is now Regulation 1.2.1(B)(1) in 2012 as an exception to the regulation’s general rule requiring recusal if 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. See A.O. 2018-59 (member of the Westerly Town Council was not prohibited from participating in the Town Council’s discussions and decision-making relative to matters involving the Westerly School Committee and/or the Elementary School Redesign Committee, notwithstanding that his wife was currently serving as an elected member of the Westerly School Committee and as an appointed member of the Elementary School Redesign Committee, provided that neither the petitioner nor his wife had a personal financial interest in any matter under discussion and that all other requirements of what is now Regulation 1.2.1(B)(1) were satisfied). Here, the Petitioner represents that, in matters where the School Committee goes before the Town Council, participation by both he and his wife will be solely in their capacities as duly elected officials in the Town, and that neither he nor his wife 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 his wife appears before the Town Council in her official capacity as a member of the School Committee, 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. Matters Involving Scituate Prevention Partnership and Invoices Submitted by Petitioner’s Wife As previously stated above, Regulation 1.2.1(A)(1) requires a public official or employee to recuse himself from participation when any person within his family appears or presents evidence or arguments before his state or municipal agency. Regulation 1.3.1(B)(1), which addresses nepotism, prohibits a public official or employee 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 is a party to or a participant in the same matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage. The Petitioner has described situations in which his wife, in her capacity as Director of the SPP, is likely to appear before the Town Council. The Petitioner has further described situations in which the Town Council will be called upon to act on bulk invoices presented to the Town Council for payment that will include those submitted by his wife as an independent contractor for the Town. Unlike the appearance of the Petitioner’s wife before the Town Council as a member of the School Committee where she will be acting solely in her official capacity relative to matters in which neither she nor the Petitioner has any personal financial interest, the appearance by the Petitioner’s wife before the Town Council, both as Director of the SPP and as an independent contractor for the Town, will not trigger the exception found at Regulation 1.2.1(B)(1). Participation by the Petitioner’s wife before the Town Council in matters involving the SPP of which she is Director, coupled with the submission of invoices by the Petitioner’s wife relative to her work as an independent contractor for the Town (the anticipated reimbursement by BHDDH notwithstanding), falls squarely within the activities prohibited by Regulation 1.3.1(B)(1), namely, the Petitioner’s participation in a matter as part of his public duties where he has reason to expect that his wife is a party or participant or will derive a direct monetary gain or suffer a direct monetary loss. The Code does not generally preclude a public official from participating in matters affecting a family member’s employer unless it is reasonably foreseeable that the matter involving the employer would also result in an impact to the family member. See A.O. 99-28 (concluding that Westerly Zoning Board of Review member could participate in review of Bess Eaton’s application to construct drive-thru where there was no evidence that such construction would impact his spouse’s employment in applicant’s bakery department). In the instant case, the circumstances are such that a decision involving the SPP would likewise result in an impact to the Petitioner’s wife. See A.O. 2000-16 (concluding that decisions by the Executive Director of R.I. Housing impacting the not-for-profit community development organization that employed his spouse as its Executive Director would necessarily impact the spouse because her employer was dependent on funding from R.I. Housing to accomplish its mission). Further, any decisions by the Town Council relative to the payment of invoices and receipts submitted by the Petitioner’s wife would result in her deriving a direct monetary gain if paid or her suffering a direct monetary loss if payment is denied. 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, until such time as his wife is no longer the Director of the SPP or affiliated with that coalition as a party or participant who would be impacted by a decision of the Town Council, the Petitioner is required by the Code of Ethics to recuse when his wife or any representative of the SPP appears before the Town Council on matters related to the work of the SPP. The Petitioner is further required to recuse from discussions and decision-making relative to all invoices for hourly compensation and receipts for expenses submitted by his wife as an independent contractor for the Town. Alternatively, the Petitioner may request that any invoices and receipts submitted by his wife to the Town Council be separated from the bulk of those invoices and receipts under consideration at any given meeting, so that the Petitioner may recuse from discussions and decision-making regarding his wife’s submissions but participate in discussions and decision-making regarding those remaining. 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) Regulation 520-RICR-00-00-1.2.1 Regulation 520-RICR-00-00-1.3.1 Related Advisory Opinions: A.O. 2018-59 A.O. 2000-16 A.O. 99-28 Keywords: Family Member Nepotism Recusal [1] Formerly Commission Regulation 36-14-5004 (Prohibited Activities – Nepotism). [2] Formerly Commission Regulation 36-14-5002 (Additional Circumstances Warranting Recusal).