Advisory Opinion No. 2019-24 Rhode Island Ethics Commission Advisory Opinion No. 2019-24 Approved: April 9, 2019 Re: Kelley Morris QUESTION PRESENTED: The Petitioner, the Solicitor for the Town of Cumberland, a municipal appointed position, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places upon her in the exercise of her official duties, given that her fiancé/household member plans to appear before the Cumberland Board of Licenses to request a Victualling House License. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Solicitor for the Town of Cumberland, is prohibited by the Code of Ethics from participating in the Cumberland Board of Licenses’ consideration of her fiancé/household member’s request for a Victualling House License. The Petitioner is the Solicitor for the Town of Cumberland (“Town”), and states that she represents all Town agencies including, but not limited to, the Town Council and the Board of Licenses (“Board”). She explains that the entire membership of the Town Council also composes the entire membership of the Board, adding that the Board meets regularly once per month, immediately before the Town Council meeting. The Petitioner informs that she is engaged to Raymond Salvatore (“Mr. Salvatore” or “fiancé”), who is an elected member of the Cumberland School Committee. She states that she and Mr. Salvatore presently reside together and plan to marry in August of this year. The Petitioner further states that Mr. Salvatore plans to open a deli and catering business in Town in the near future, adding that he will be using his own funds to start the business and he will be the sole owner. The Petitioner represents that she will have no personal or financial interest in Mr. Salvatore’s business, nor will she be involved in its management or day-to-day operations. The Petitioner explains that, in order to open a deli and catering business, Mr. Salvatore must apply to the Town for a Victualling House License (“license”), and that these particular licenses are granted routinely by the Board. The Petitioner represents that she will recuse from participation in the Board’s consideration of Mr. Salvatore’s license application and step away from her seat for that portion of the meeting. She states that, in the unlikely event that the Board might require the Solicitor’s assistance in connection with Mr. Salvatore’s license application, the attorney recently hired by the Town Council could step in. Under the general nepotism prohibitions of the Code of Ethics, specifically Commission Regulation 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) (“Regulation 1.3.1”), a public official shall not participate in any matter as part of her public duties if she has reason to believe or expect that any person within her 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. Regulation 1.3.1(B)(1). “Household member” is defined as “a person having legal residence or living in a public official’s or public employee’s place of residence.” Regulation 1.3.1(A)(1). The Ethics Commission has previously concluded that a public official’s family member who sought to establish her own business was not prohibited from appearing before several agencies in the same municipality in which the public official served. See A.O. 2018-46 (opining that the wife of a Scituate Town Council member was not prohibited from appearing before the Hope Village Overlay Committee, the Scituate Planning Board of Review, and/or the Scituate Zoning Board of Review, over which the Town Council had appointing authority, to obtain approval to establish an early learning center on property located in the Town of Scituate). Here, it is the Petitioner who has sought clarification of her responsibilities under the Code of Ethics regarding her fiancé’s plans to start his own business. The Petitioner has already indicated that she has no personal or financial interest in the business that her fiancé is starting, and that she will not be involved in its management or day-to-day operations. The Petitioner has further indicated that she will recuse from participation in the Board’s consideration of Mr. Salvatore’s license application and step away from her seat for that portion of the meeting. Such recusal is required under the Code of Ethics because the Petitioner’s fiancé is a household member who is both a party to and participant in a matter before the Board for which the Petitioner serves as a Solicitor, and because he will be directly financially impacted by the Board’s decision on his license application. See A.O. 2019-19 (opining that a member of the Warwick School Committee was prohibited from participating in any School Committee matter in which his mother was a party or participant, or in which she would be financially impacted). Upon the Petitioner’s recusal, she is required to complete a Statement of Conflict of Interest, sometimes called a recusal form, pursuant to R.I. Gen. Laws § 36-14-6. Given that Victualling House Licenses are renewable annually, the Petitioner is cautioned to remain mindful of her obligations under the Code of Ethics as outlined in this advisory opinion, and advised to continue to exercise the recusal provisions 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: § 36-14-6 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) Related Advisory Opinions: A.O. 2018-46 A.O. 2019-19 Keywords: Nepotism Recusal