Advisory Opinion No. 2019-55 Rhode Island Ethics Commission Advisory Opinion No. 2019-55 Approved: September 24, 2019 Re: The Honorable Donald R. Grebien QUESTION PRESENTED: The Petitioner, the Mayor of the City of Pawtucket, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from taking official actions regarding the approval or disapproval of the Pawtucket Soup Kitchen’s application for Community Development Block Grant funds, given that his spouse is a member of the Pawtucket Soup Kitchen’s Board of Directors. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Mayor of the City of Pawtucket, a municipal elected position, is not prohibited by the Code of Ethics from taking official actions regarding the approval or disapproval of the Pawtucket Soup Kitchen’s application for Community Development Block Grant funds, notwithstanding that his spouse a member of the Pawtucket Soup Kitchen’s Board of Directors. The Petitioner is the Mayor of the City of Pawtucket (“City” or “Pawtucket”). He represents that the City, through its Department of Planning and Redevelopment (“Planning Department”), receives federal Community Development Block Grant (“CDBG”) funds from the United States Department of Housing and Urban Development on an annual basis to support programs whose principal beneficiaries are low and moderate households and non-profit businesses located in the City. The Petitioner explains that applicants must complete a CDBG application outlining a proposed project for funding and comply with all other federal requirements. The Petitioner further explains that the CDBG applications are reviewed by the Planning Department staff for completeness and compliance with the grant requirements. Applications for which the Planning Department staff recommends funding are then submitted to the Petitioner for review and approval. Upon his approval, the Petitioner forwards the applications to the Pawtucket City Council for review and approval. The Petitioner represents that pending before the City is a CDBG fund application filed by the Pawtucket Soup Kitchen (“Soup Kitchen”), a private non-profit organization. In its application, the Soup Kitchen explains that, if granted, the CDBG funds will be utilized to support its operation, noting that in the past the CDBG funds have allowed the Soup Kitchen to pay its rent and thereby enabling it to use funds raised to cover food and program costs. The Petitioner states that his spouse is a member of the Soup Kitchen’s Board of Directors, adding that neither she nor any other Board member receives compensation for their services on the Board, and that his spouse will not be financially impacted by the grant or denial of the Soup Kitchen’s CDBG application. The Petitioner represents that his spouse will not appear before him with regard to the Soup Kitchen’s CDBG application and that she did not sign the application. Given this set of facts the Petitioner seeks guidance from the Ethics Commission regarding whether the Code of Ethics prohibits him from taking official actions regarding the approval or disapproval of the Soup Kitchen’s application for CDBG funds. The Code of Ethics provides that a public official shall not have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity which is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A public official has an interest which is in substantial conflict with the proper discharge of his duties in the public interest if he has reason to believe or expect that he or any person within his family, his business associate, or any business by which he is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). A public official has reason to believe or expect a conflict of interest exists when it is “reasonably foreseeable,” specifically, when the probability is greater than “conceivably,” but the conflict of interest need not be certain to occur. Commission Regulation 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001). A public official is further prohibited by the Code of Ethics 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, his business associate, employer or family member. Section 36-14-5(d). Additionally, a public official is required to recuse himself from participation when a business associate or any person within his family appears or presents evidence or arguments before his public agency. Commission Regulation 520-RICR-00-00-1.2.1(A)(1) Additional Circumstances Warranting Recusal (36-14-5002). The Code of Ethics also provides that a public official shall not participate 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 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. Commission Regulation 520-RICR-00-00-1.3.1(B)(1) Prohibited Activities – Nepotism (36-14-5004). The Code of Ethics does not, however, generally require a public official to recuse from participating in matters that involve or financially impact a family member’s business associate or employer unless there is also a corresponding benefit flowing to that family member. See A.O. 2019-40 (opining that a member of the Smithfield School Committee who was also a member of the Smithfield School Building Committee was not prohibited by the Code of Ethics from participating in the review of a Request for Proposal for, and the selection of, a construction manager for an elementary school reconfiguration project, and from all other Building Committee matters concerning the selected construction manager, notwithstanding that his daughter was employed by a company that was expected to bid on the project, since his daughter would not financially impacted by the Building Committee’s decision); A.O. 2008-69 (opining that a member of the Woonsocket Zoning Board of Review was permitted to participate in discussion and voting on a petition for a variance brought by CVS, notwithstanding the fact that the petitioner’s sister was employed as an accounting analyst with CVS, since his sister would not be financially impacted by the Zoning Board of Review’s decision regarding the petition); A.O. 2007-16 (opining that a member of the Johnston School Committee could participate in the Committee’s review of bills submitted by The Providence Center, a provider of special education services that employed the petitioner’s mother as an office assistant, provided that his mother’s employment was completely unrelated to the Center’s provision of services to the Johnston School Department). Here, the Petitioner’s spouse is a business associate of the Soup Kitchen because she is a member of its Board of Directors. See A.O. 2007-58 (opining that a member of the Tiverton Planning Board, who was also a member of the Board of Directors of the Tiverton Yacht Club, was a business associate of the Yacht Club and must recuse from participating in the Planning Board’s review of the proposed amendment to the zoning ordinance submitted by the Yacht Club). However, the Petitioner has no reason to believe or expect that his spouse will be financially impacted, directly or otherwise, by reason of his official activity as Mayor in relation to the approval or disapproval of the Soup Kitchen’s CDBG application. Based on the Petitioner’s representations, the application of the Code of Ethics, and a review of prior advisory opinions, it is the opinion of the Ethics Commission that the Petitioner is not prohibited from participating in the approval or disapproval of the Soup Kitchen’s CDBG application. 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) § 36-14-7(a) 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001) 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. 2019-40 A.O. 2008-69 A.O. 2007-58 A.O. 2007-16 Keywords: Conflict of Interest Family Member Nepotism