Advisory Opinion No. 2019-47 Rhode Island Ethics Commission Advisory Opinion No. 2019-47 Approved: August 20, 2019 Re: Lisa Daft QUESTION PRESENTED: The Petitioner, a member of the Barrington Committee on Appropriations, a municipal elected position, requests an advisory opinion regarding whether she is prohibited by the Code of Ethics from continuing to serve in that capacity, and/or from participating in the review, deliberations or voting relative to the town, school and capital budgets, given that her spouse is currently an employee of the Barrington School Department. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Barrington Committee on Appropriations, a municipal elected position, is not prohibited by the Code of Ethics from continuing to serve in that capacity, notwithstanding that her spouse is an employee of the Barrington School Department. Although the Petitioner is prohibited under the Code of Ethics from participating in discussions or decision-making relative to budgetary line items that would address or affect the employment, compensation or benefits of her spouse, she is not prohibited from participating in discussions or decision-making relative to approving or rejecting the School Department budget as a whole. The Petitioner states that she was elected at the 2019 Barrington Financial Town Meeting to serve a two-year term on the Barrington Committee on Appropriations (“COA”). She further states that the COA is a five-member committee tasked by the Barrington Town Charter with the review, deliberations and voting of Barrington’s town, school and capital budgets, which the COA will present to Barrington’s registered voters for consideration at the Financial Town Meeting next May. The Petitioner represents that her spouse is employed by the Barrington School Department (“School Department”) as the Assistant Principal at Barrington High School, a position he has held for close to eight years. She explains that, while her spouse’s salary could potentially be affected by the school budget, the COA will vote only as to a final or “bottom line” budget amount proposed by the School Committee. She adds that if the COA rejects a proposed budget by the School Committee, it will do so as to the proposed budget as a whole, and so advise the School Committee without comment as to individual line items. The Petitioner states that once the COA is satisfied with a final budget amount proposed by the School Committee, it will then be presented to the voters for consideration. She adds that the COA cannot advise the School Department on how to spend its money, and that all decisions regarding her spouse’s salary are made by the School Committee and the Superintendent. Given this set of facts, the Petitioner seeks guidance regarding whether she is prohibited by the Code of Ethics from continuing to serve on the COA, and/or from participating in the review, deliberations or voting relative to the town, school and capital budgets. 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 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, her business associate or her 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). Commission Regulation 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) (“Regulation 1.3.1”) sets forth more specific nepotism provisions which are applicable to matters that involve or impact any person within the public official’s family or any person who resides in her household. The definition of “any person within [] her family” specifically includes a “spouse.” Regulation 1.3.1(A)(2). In general, Regulation 1.3.1(B)(1) prohibits the public official from participating 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, or obtain an employment advantage, as the case may be.” Regulation 1.3.1(B)(3)(a) further prohibits the public official 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 [] her family or a household member.” However, Regulation 1.3.1(B)(3)(c) provides that the public official 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 [] her family or her 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.” The Ethics Commission has declined to adopt a blanket or absolute prohibition against one family member serving in or being employed by the same municipality or even the same department or agency in which another family member serves or even has supervisory responsibilities. Rather, the Ethics Commission has generally 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 or her family member. Here, while the provisions of the Code of Ethics will not bar the Petitioner and her spouse from serving in the same municipality, the Code of Ethics will regulate and limit the performance of the Petitioner’s official duties relative to the review, deliberations and voting of Barrington’s town, school and capital budgets, which the COA will present to Barrington’s registered voters for consideration at the Financial Town Meeting next May. See A.O. 2002-48 (opining that the simultaneous service of family members in the respective positions of Town Councilor and Town Clerk did not, in and of itself, present a conflict of interest for the Town Council, however, the Town Councilor, with whom the Town Clerk had a familial relationship, was required to recuse from the Town Council’s consideration of any personnel matters involving the Town Clerk, including issues of salary, job performance or re-appointment); A.O. 2005-30 (opining that a candidate for appointment to the City of Providence Board of Canvassers could seek and accept such appointment notwithstanding that his spouse was an elected member of the Providence City Council but he was required to recuse from participation in any matters relating to or affecting the candidacy or election of his spouse and/or other candidates running against his spouse). Section 36-14-5 and Regulation 1.3.1 clearly prohibit the Petitioner from participating in any COA matters in which her spouse is likely to be directly financially impacted, positively or negatively. Based on the Petitioner’s representations, however, the COA does not approve or reject specific line items before voting to recommend a proposed school, town, or capital budget to the voters for approval; rather it approves or rejects the entire budget proposed by, in this case, the School Committee. In similar circumstances, the Ethics Commission has consistently opined that the Code of Ethics did not prohibit a public official’s vote to approve or reject a budget as a whole, reasoning that a vote on a budget as a whole is sufficiently remote from specific line items so as not to constitute a substantial conflict of interest in violation of the Code. See e.g. , A.O. 2016-30 (opining that a member of the Little Compton Budget Committee could participate in Budget Committee matters pertaining to the Wilbur & McMahon School and School Department budget generally, but was required to recuse from discussion and voting on any budgetary line item regarding School Committee members’ stipends); A.O. 2002-44 (opining that a Warwick City Councilor, whose spouse was employed by the Warwick School Department, could participate in and/or vote on the Town budget even if it included matters related to school budgets and school issues generally, provided that he did not participate in and/or vote on specific matters related to personnel issues affecting his spouse). Accordingly, based on the facts as represented above, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from continuing to serve as a member of the COA, notwithstanding that her spouse is an employee of the School Department. Although the Petitioner is prohibited under the Code of Ethics from participating in discussions or decision-making relative to budgetary line items that would address or affect the employment, compensation or benefits of her spouse, she is not prohibited from participating in discussions or decision-making relative to approving or rejecting the School Department budget as a whole. However, the Ethics Commission is aware that a general discussion can quickly devolve into a more narrow review of specific budget provisions. The Petitioner must be vigilant to identify such instances where a general conversation begins to focus on individual aspects of the school budget that are likely to financially impact her spouse. In such circumstances, the Petitioner must recuse from further participation pursuant to § 36-14-6 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) 520- RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) Related Advisory Opinions: A.O. 2016-30 A.O. 2005-30 A.O. 2002-48 A.O. 2002-44 Keywords: Budgets Nepotism