Advisory Opinion No. 2019-26 Rhode Island Ethics Commission Advisory Opinion No. 2019-26 Approved: April 9, 2019 Re: Edward Burbank QUESTION PRESENTED: The Petitioner, Chairperson of the Manville Fire District Board of Wardens, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from continuing his service on the Board and what restrictions, if any, the Code of Ethics places upon him if the Manville Fire District Charter is amended to convert the position of Tax Collector/Treasurer from elected to appointed, given that his spouse currently holds the elected position of Tax Collector/Treasurer and could potentially be appointed to the position by the Board.[1] RESPONSE: It is the opinion of the Ethics Commission that the Petitioner, a member of the Manville Fire District Board of Wardens, a municipal elected position, is not prohibited by the Code of Ethics from continuing his service if the Manville Fire District Charter is amended to convert the position of Tax Collector/Treasurer from elected to appointed, notwithstanding that his spouse currently holds the position of Tax Collector/Treasurer and could potentially be appointed to the position. However, the Petitioner must be mindful of the limitations that the Code of Ethics places upon him as detailed in this Advisory Opinion. The Petitioner is the Chairperson of the Manville Fire District Board of Wardens (“Board”). He represents that the Board is currently revising the Manville Fire District Charter (“Charter”) and is proposing that the position of Tax Collector/Treasurer be converted from an elected to an appointed position, with said appointment being made by the Board. The Petitioner states that his spouse is currently the elected Tax Collector/Treasurer and that her term expires in September of 2019. The Petitioner explains that any changes to the Charter must be approved by the General Assembly, and if approved, would take effect after the completion of his spouse’s elected term. The Petitioner states that the duties of the Tax Collector/Treasurer include, but are not limited to, the administration and collection of taxes, disbursement of funds, payment of bills approved by the Board, and presentations of reports to the Board at monthly meetings. If converted from an elected to an appointed position, the Tax Collector/Treasurer would report directly to the Board. The Petitioner further represents that the Tax Collector/Treasurer’s salary is included in the Fire District’s budget which is created by the Fire Chief, reviewed by the Board, and approved by the voters at the Annual Fire District Meeting. Given this set of facts, the Petitioner requests an advisory opinion regarding whether, if and when the Tax Collector/Treasurer position is converted from elected to appointed, the Code of Ethics prohibits him from continuing to serve on the Board and what restrictions, if any, the Code of Ethics will place upon him. 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). 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.” More specifically, Regulation 1.3.1 prohibits a public official from participating in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within his family, or from delegating such tasks to a subordinate, except in accordance with advice received in a formal advisory opinion from the Ethics Commission. Regulation 1.3.1(B)(2)(a) & (b). The definition of “any person within his [] family” specifically includes “spouse 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.” The Ethics Commission has declined to adopt a blanket or absolute prohibition against one family member serving in a department or agency in which another family member has supervisory responsibilities. Rather, the Commission generally has taken the position that a public official or employee serving in a supervisory capacity will satisfy the requirements of the Code of Ethics by recusing from participation in matters directly affecting his family member. See A.O. 2019-14 (opining that a member of the Scituate Home Rule Charter Commission was not prohibited from serving on the Charter Commission while her husband served on the Town Council, provided that she recused from participating in Charter Commission discussions and decision-making regarding compensation for members of the Town Council, unless said compensation was not to be implemented until after the next election cycle or the end of her husband’s term of office); A.O. 2016-26 (opining that a Lieutenant in the East Greenwich Fire Department was not prohibited from serving in that position upon the hiring of his brother as a Probationary Firefighter in the same Fire Department, provided that certain procedures were followed so that the Lieutenant was removed from personnel decisions or other matters that particularly affected his family member). Here, while the provisions of the Code of Ethics will not bar the Petitioner from continuing to serve on the Board if his spouse is appointed Tax Collector/Treasurer, the Code of Ethics will regulate and limit the performance of his official duties. At this juncture, however, the state of the facts as presented by the Petitioner are too hypothetical for the Ethics Commission to provide specific guidance. However, the Commission could provide very general guidance as to the limitations the Code of Ethics will place upon the Petitioner’s public duties if and when the Tax Collector/Treasurer position is converted from elected to appointed and his spouse is a candidate and/or is appointed to such position. See A.O. 2005-41 (opining that a prospective applicant for the position of Jamestown Town Administrator, whose husband was the Jamestown Fire Chief, may return for further guidance from the Commission if appointed, but the facts at the time of the request were too hypothetical for the Commission to offer formal guidance as to potential conflicts occurring during the Town’s budgetary process). If and when the Tax Collector/Treasurer position is converted from elected to appointed and if his spouse is a candidate or expected to be a candidate for the position, the Petitioner will be required to recuse from any Board discussions and decision-making relative to the appointment, including not only discussions and decision-making relative to his spouse’s appointment but also relative to the appointment of the other candidates, if any. The Petitioner will further be prohibited by the Code of Ethics from participating in any Board matters in which his spouse will be financially impacted or will receive an employment advantage. The Petitioner will be also prohibited from participating in the supervision, evaluation, classification, promotion, transfer or discipline of his spouse. Further, the Petitioner will be prohibited from participating in discussions and decision-making relative to any budgetary line item that addresses or affects the employment, compensation or benefits of his spouse. However, the Petitioner could participate in the Board’s discussion and decision making relative to approving or rejecting the entire budget as a whole. Lastly, Petitioner is not required by the Code of Ethics to recuse when his spouse appears before the Board in her official capacity as the Tax Collector/Treasurer, provided that all of the requirements of Commission Regulation 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002) are satisfied. In all cases of recusal, notice shall be filed with the Ethics Commission in accordance with section 36-14-6. Accordingly, the Petitioner is advised to seek additional advice from the Ethics Commission in the future if, and when, the Tax Collector/Treasurer position is converted from elected to appointed and his spouse is a candidate and/or is appointed to such position. 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) 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002) 520-RICR-00-00-1.3.1 Prohibited Activities Nepotism (36-14-5004) Related Advisory Opinions: A.O. 2019-14 A.O. 2016-26 A.O. 2005-41 Keywords: Family Member Nepotism Recusal