Advisory Opinion No. 2020-29 Rhode Island Ethics Commission Advisory Opinion No. 2020-29 Approved: July 14, 2020 Re: Timothy T. More QUESTION PRESENTED: The Petitioner, who serves as a member of an advisory finance committee and property committee for the Paul Cuffee School, a Rhode Island public charter school, and who in his private capacity is an attorney, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places on his ability to accept financial compensation for providing legal services to the Paul Cuffee School at the request of its Board of Trustees. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, who serves as a member of an advisory finance committee and property committee for the Paul Cuffee School, a Rhode Island public charter school, and who in his private capacity is an attorney, is not prohibited by the Code of Ethics from accepting financial compensation for providing legal services to the Paul Cuffee School at the request of its Board of Trustees because it does not appear that the Petitioner is subject to the Code of Ethics through his advisory roles. However, in the interest of avoiding even the appearance of impropriety, the Ethics Commission recommends that the Petitioner recuse from further participation, in his capacity as a member of the finance committee and the property committee, in any discussions and/or provision of advice to the Board of Trustees relating to the matters for which he will be providing legal services. Alternatively, or to the extent that recusal is not feasible, it is recommended that the Petitioner resign from the finance committee and the property committee or terminate his legal representation to the Paul Cuffee School. The Petitioner states that the Paul Cuffee School (“School”) is a public charter school that was founded in 2001 for Providence children, grades K through 12. While day-to-day matters rest with the Head of School and the three School Principals, the School’s Board of Trustees (“Board”) is the School’s primary governing body, providing oversight, long-range strategic planning, expansion and growth preparation, and financial support.[1] Charter school board members, heads of school and principals are all subject to the Code of Ethics and required to file yearly financial statements with the Ethics Commission. R.I. Gen. Laws § 36-14-16(a)(5). The Petitioner represents that the Board has the authority to appoint an advisory finance committee, the role of which is to advise the Board regarding financial matters such as the selection of auditors, the approval of audited financial statements, and the School’s budget. He further represents that the finance committee has no decision-making authority regarding these or other matters about which the finance committee might advise the Board. The Petitioner states that all decision-making authority rests solely with the Board and that the Board is not required to act on any of the recommendations made by the finance committee. The Petitioner represents that the head of the finance committee is appointed by the Board. He further represents that the other current members of the finance committee joined at will without having been formally appointed by the Board. He informs that the members of the finance committee will serve for no specific term length and are expected to remain on the finance committee until such time as they are no longer willing and/or able to serve. The Petitioner represents that he has served as a member of the finance committee continuously since the School’s inception. He explains that he joined the finance committee after being asked to do so by a founder of the School for whom the Petitioner was performing unrelated legal services at the time. The Petitioner represents that his membership on the finance committee is purely voluntary and that he receives no stipend. The Petitioner represents that the Board also has the authority to appoint an advisory property committee, the role of which is to examine the potential acquisition or lease of certain facilities and/or real property and advise the Board accordingly with regard to same. He further represents that, like the finance committee, the property committee has no decision-making authority regarding these or other matters about which the property committee might advise the Board. The Petitioner states that all decision-making authority rests solely with the Board and that the Board is not required to act on any of the recommendations made by the property committee. The Petitioner represents that the head of the property committee is appointed by the Board. He further represents that the other current members of the property committee joined at will without having been formally appointed by the Board. He informs that the members of the property committee will serve for no specific term length and are expected to remain on the property committee until such time as they are no longer willing and/or able to serve. The Petitioner represents that he has served as a member of the property committee for approximately one year. He explains that, after attending a property committee meeting in his role as a member of the finance committee, he started receiving notices of subsequent property committee meetings, most of which he then attended. The Petitioner represents that his membership on the property committee is purely voluntary and that he receives no stipend. The Petitioner states that, in his private capacity, he is a licensed attorney in Rhode Island. He adds that the focus of his practice is real estate, and that he has, on several occasions, provided legal services to the School for which he was financially compensated. He identifies those services as having included the negotiation of several leases; the acquisition, financing and renovation of the Lower School building; and the acquisition of a former night club building that was subsequently demolished for parking. The Petitioner further states that he would like to be retained by the Board to provide additional legal services to the School relative to the acquisition of a building that the School currently leases from the City of Providence and a parcel of land from the Providence Redevelopment Agency to be used by the School for parking (collectively, “the acquisitions”). The Petitioner states that, in his capacity as a member of both the finance committee and the property committee, he has discussed with said committees, and advised the Board, regarding the acquisitions. He informs that he has already performed some legal work relative to the acquisitions without charging a fee, but that he recently wrote to the head of the Board and to the heads of the finance committee and the property committee, both of whom are also members of the Board, asking for a retainer to continue his work relative to the acquisitions and to be compensated for all such work going forward. The Petitioner states that the Board recently voted to hire him subject to the issuance of an advisory opinion from the Ethics Commission that it would not violate the Code of Ethics for the Petitioner to accept an offer of contract employment from the School. The Petitioner represents that he would be willing to resign from membership on both the finance committee and the property committee prior to accepting contract employment from the Board relative to the acquisitions. He adds that the subject of his potential hiring by the Board relative to the acquisitions has not been the subject of any meetings of either the finance committee or the property committee. It is in the context of these facts that the Petitioner seeks guidance from the Ethics Commission regarding what limitations, if any, the Code of Ethics places upon his ability to accept financial compensation for providing legal services to the School relative to the acquisitions. The Code of Ethics identifies the following persons as subject to its provisions: state and municipal elected officials; state and municipal appointed officials; and employees of state and local government, of boards, commissions, and agencies. R.I. Gen. Laws § 36-14-4. Under the Code of Ethics, a “state or municipal appointed official” includes any officer or member of a state or municipal agency who is appointed by or through the governing body or highest official of state or municipal government. Section 36-14-2(9); Commission Regulation 520-RICR-00-00-1.1.3(B) Additional Definitions (36-14-2002) (“Commission Regulation 1.1.3”). The Code of Ethics defines a “state agency” as “any department, division, agency, commission, board, office, bureau, authority, or quasi-public authority within Rhode Island, either branch of the Rhode Island general assembly, or any agency or committee thereof, the judiciary, or any other agency that is in any branch of Rhode Island state government and which exercises governmental functions other than in an advisory nature.” Section 36-14-2(8)(ii) (emphasis added); Commission Regulation 1.1.3(D). Approval by the Rhode Island Council on Elementary and Secondary Education is required for the establishment and continuation of a charter school. Section 16-77-5.1(b). Superintendents, administrators, principals and board members of charter schools are subject to the Code of Ethics. Section 36-14-16(a). Most relevant to the instant advisory opinion is the fact that both the statutory and regulatory definitions of “state agency” exempt advisory committees. While the Ethics Commission has not previously had occasion to render advice to a petitioner serving in an advisory capacity on a finance committee or property committee for a charter school, it has, on a number of occasions, opined that a petitioner serving in an advisory capacity on a municipal committee was not a “municipal appointed official” as that term is defined in the Code of Ethics, and thus, was not subject to the statutory and regulatory provisions of the Code of Ethics. In Advisory Opinion 2007-48, for example, the Ethics Commission determined that the Town of Charlestown’s Charter Revision Advisory Committee, to which the petitioner had been appointed by the Charlestown Town Council, was not a “municipal agency” as that term is defined in the Code of Ethics because its powers were purely advisory in nature. As a result, the petitioner was not subject to the statutory and regulatory provisions of the Code of Ethics. See also A.O. 2002-58 (opining that a Tiverton Economic Development Committee (“TEDC”) member was not required to file a financial disclosure statement since the TEDC acted in a purely advisory capacity and, therefore, was not a “municipal agency” for purposes of the Code of Ethics); A.O. 2000-13 (opining that the Town of Little Compton Harbor Commission was not a “municipal agency” as that term is defined in the Code of Ethics and, therefore, the members of the Commission were not required to abide by the statutory and regulatory provisions of the Code of Ethics). Contra A.O. 2000-48 (opining that a member of the City of Warwick Harbor Management Commission (“HMC”) was required to file a financial disclosure form because, in addition to its policymaking role in making recommendations, the HMC also served as an appellate body, affecting the rights of persons aggrieved by decisions of the department of parks and recreation and harbormaster or staff, and that such actions were not “purely advisory” in nature). The Petitioner represents that he was not appointed by the Board to either the finance committee or the property committee. He further represents that both committees serve the Board in a solely advisory capacity, and there is nothing in the facts as represented that suggests otherwise. Accordingly, given the representations of the Petitioner and the analysis of the applicable provisions of the Code of Ethics, and consistent with prior advisory opinions, we are of the opinion that members of the finance committee and property committee, who are not also members of the Board, are not subject to the statutory and regulatory provisions of the Code of Ethics. However, given that these committees serve a public entity that is subject to the Code of Ethics, and in response to the Petitioner’s request for guidance from the Ethics Commission, we offer the following analysis and advice. If the Petitioner had been found to be subject to the Code of Ethics by virtue of his service on the School’s finance and property committees, there is no doubt that he would have been, at the least, required to recuse from participating in any committee discussions or voting on matters in which he has a financial interest as a private attorney. 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). Furthermore, public officials are advised by the Rhode Island Constitution to hold themselves to ethical standards that go beyond the legal requirements of the Code of Ethics by “adhearing to the highest standards of ethical conduct, respecting the public trust and . . . avoiding the appearance of impropriety[.]” R.I. Const. art. III, sec. 7. According to the Petitioner, the acquisitions for which the Board now seeks to hire him as legal counsel have been the subject of recent discussions and advice to the Board by the Petitioner in his capacity as both a member of the finance committee and the property committee. For this reason, and to avoid even the appearance of impropriety, it is the recommendation of the Ethics Commission that, given his attorney/client relationship with the School on these matters, the Petitioner should recuse from participation in all future discussions and advice regarding the acquisitions in his capacity as a member of the finance committee and the property committee. Alternatively, or to the extent that recusal from such discussions and advice is not feasible, it is recommended that the Petitioner either resign from both the finance committee and the property committee or terminate his legal representation on behalf of the School. 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(8) § 36-14-2(9) § 36-14-4 § 36-14-5(a) § 36-14-6 § 36-14-16(a) 520-RICR-00-00-1.1.3 Additional Definitions (36-14-2002) Other Constitutional and Statutory Citations: R.I. Const. art. III, sec. 7 § 16-77-5.1(b) Related Advisory Opinions: A.O. 2007-48 A.O. 2002-58 A.O. 2000-48 A.O. 2000-13 Keywords: Advisory Body Conflict of Interest [1] https://www.paulcuffee.org/about/cuffee-team/board/. Last visited July 1, 2020.