Advisory Opinion No. 2020-44 Rhode Island Ethics Commission Advisory Opinion No. 2020-44 Approved: October 27, 2020 Re: Sven Risom QUESTION PRESENTED The Petitioner, a member of the Town of New Shoreham Town Council, a municipal elected position, requests an advisory opinion regarding what restrictions, if any, the Code of Ethics places upon him in carrying out his Town Council duties, given that his brother is employed by the Town as its Residential Building Inspector. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Town of New Shoreham Town Council, a municipal elected position, is prohibited by the Code of Ethics from participating in any Town Council matter in which his brother is a party or participant, or by which his brother will be financially impacted or receive an employment advantage. However, the Petitioner is not required to recuse when his brother appears before the Town Council in his official capacity as the Town’s Residential Building Inspector, provided that all of the other requirements of Commission Regulation 520-RICR-00-00-1.2.1(B)(1) are satisfied. The Petitioner is also prohibited from participating in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of his brother. Further, the Petitioner is prohibited from participating in discussions and voting relative to any budgetary line item that would address or affect the employment, compensation or benefits of his brother. The Petitioner is likewise prohibited from participating in negotiations relative to an employee contract or collective bargaining agreement that addresses or affects his brother’s employment, compensation, or benefits. The Petitioner may, however, participate in the Town Council’s discussions and vote relative to approving or rejecting the entire budget or employee contract or collective bargaining agreement as a whole. The Petitioner is an elected member of the Town Council for the Town of New Shoreham, also known as Block Island (“Town” or “Block Island”). He represents that, in August of 2020, his brother was hired by the Interim Town Manager as Block Island’s new Residential Building Inspector. The Petitioner further represents that the Residential Building Inspector position was advertised by the Interim Town Manager and the Town Building Official in accordance with standard procedures, adding that neither the Petitioner, nor any other members of the Town Council, participated in the creation of the job description, the selection of candidates to be interviewed, or the decision of whom to offer the position. The Petitioner states that the Residential Building Inspector reports directly to the Town Building Official who, in turn, reports directly to the Town Manager. The Petitioner represents that, each spring, the Town Council engages in a budgetary line item review of the annual proposed budget. He states that he is prepared to recuse from participation in the review of line items that relate to his brother’s employment and to vote only to approve or reject the budget as a whole. The Petitioner represents that employment contracts and collective bargaining agreements are negotiated on behalf of the Town by the Town Manager, Director of Finance, and one member of the Town Council (not the Petitioner). He states that he will likewise recuse from participation in any employee contract or collective bargaining issues that might impact his brother, other than voting to approve or reject an employee contract or collective bargaining agreement as a whole. The Petitioner explains that, were his brother to appear before the Town Council, it would likely be solely in his public capacity as the Residential Building Inspector and, were that not the case, the Petitioner would recuse from participation or seek further guidance from the Ethics Commission. It is in the context of these representations that the Petitioner seeks general guidance from the Ethics Commission regarding any limitations that the Code of Ethics might impose upon his Town Council duties in light of his brother’s municipal employment. 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). An official will have an interest in substantial conflict with his official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, his family member, his business associate, his employer, or any business which the public official represents. Section 36-14-7(a). Further, section 36-14-5(d) prohibits an official from using his position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, his employer, his business associate, or any person within his family. Participation in Matters That Involve or Financially Impact the Petitioner’s Brother 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 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. Regulation 1.3.1(B)(1). The definition of “any person within his [] family” specifically includes “brother.” Regulation 1.3.1(A)(2). Notably, Regulation 1.3.1(B)(1) not only prohibits actions by a public official that would financially impact his family member, but also applies when such actions involve a family member as a party or participant, regardless of the potential for financial impact. Further, under Regulation 1.3.1(B)(1), a public official is prohibited from participating in matters that may bestow an employment advantage upon a family member. Such an advantage, which might not appear to be a direct financial gain, could be some type of opportunity (such as an educational or travel experience) or resource (such as access to enhanced technology) that the family member would not otherwise have had. Buttressing the nepotism prohibitions within the Code of Ethics, Commission Regulation 520-RICR-00-00-1.2.1(A)(1) (“Regulation 1.2.1”) states that a public official must also recuse himself from participation in his official capacity when any person within his family appears or presents evidence or arguments before his municipal agency. The exception found at Regulation 1.2.1(B)(1) states that a public official is not required to recuse himself pursuant to this or any other provision of the Code when his family member is before his municipal agency solely in an official capacity as a duly authorized member or employee of another municipal agency, to participate in non-adversarial information sharing or coordination of activities between the two agencies, provided that the family member is not otherwise a party or participant, and has no personal financial interest, in the matter under discussion. See, e.g., A.O. 2018-59 (opining that a member of the Westerly Town Council was not prohibited from participating in the Town Council’s discussions and decision-making relative to matters involving the Westerly School Committee and/or the Elementary School Redesign Committee, notwithstanding that his wife was currently serving as an elected member of the Westerly School Committee and as an appointed member of the Elementary School Redesign Committee, provided that neither the petitioner nor his wife had a personal financial interest in any matter under discussion and that all other requirements of what is now Regulation 1.2.1(B)(1) were satisfied). Thus, in the event that the Petitioner’s brother is a party to or participant in a matter before the Town Council or will be directly financially impacted or obtain an employment advantage by the Town Council’s decision-making, the Petitioner is required to recuse consistent with section 36-14-6. See, e.g., A.O. 2013-8 (opining that a Bristol Town Council member was prohibited by the Code of Ethics from participating in the Town Council’s appointment of a new harbormaster and the Town Council’s review of any amendments to the harbormaster’s job description, given that his brother was then serving as interim harbormaster and was also one of nineteen applicants for the permanent harbormaster position). However, were the Petitioner’s brother to appear before the Town Council solely in his public capacity as the Residential Building Inspector, a duly appointed employee of the Town, as the Petitioner represents would likely be the case should his brother appear before the Town Council at all, the Petitioner would not be required by the Code of Ethics to recuse, provided that all of the other requirements of Regulation 1.2.1(B)(1) were also satisfied. Participation in Supervision and Evaluation of Petitioner’s Brother 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). See, e.g., 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 department, provided that certain procedures were followed so that the lieutenant was removed from personnel decisions or other matters that particularly affected his brother). Here, the Petitioner represents that he was not involved in his brother’s hiring and will play no role in his supervision. The Petitioner is, nonetheless, reminded that he is prohibited from participating in matters that involve the supervision, evaluation, appointment, classification, promotion, transfer or discipline of his brother. Participation in Budgets Regulation 1.3.1 also addresses a public official’s participation in budget matters that could financially impact or involve the public official’s family member. Specifically, a public official is prohibited 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.” Regulation 1.3.1(B)(3)(a). 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.” In Advisory Opinion 2010-35, the Ethics Commission opined, inter alia, that a Pawtucket School Committee member whose brother and sister-in-law were teachers in the School District was prohibited by the Code of Ethics from participating in any School Committee discussion or vote on line items in the School Department budget that would address or affect the employment, compensation or benefits of his brother and sister-in-law. However, the petitioner could participate in the School Committee’s discussion and vote relative to approving or rejecting the entire budget as a whole. The basis for allowing participation relative to the budget as a whole is an assumption that a vote on the entire budget is sufficiently remote from most particular line items so as not to constitute a substantial conflict of interest in violation of the Code of Ethics. Therefore, as appropriately anticipated by the Petitioner, while he is prohibited from participating in the Town Council’s discussions and voting relating to budgetary line items that would address or affect the employment, compensation or benefits of his brother, the Petitioner may participate in the Town Council’s discussion and vote to approve or reject the entire budget as a whole. Participation in Collective Bargaining/Employee Contracts Regulation 1.3.1(B)(4) also addresses a public official’s participation in collective bargaining/employee contracts. It specifically prohibits a public official from participating in negotiations relative to an employee contract or collective bargaining which addresses or affects the employment, compensation or benefits of any person within his family or a household member. 1.3.1(B)(4)(a). However, a public official may participate in a decision to accept or reject an entire employee contract or collective bargaining agreement as a whole, provided that the person within his family or household member is impacted by the contract or agreement 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. 1.3.1(B)(4)(b). The basis for allowing such participation is an assumption that a vote on an entire contract, once negotiated by others, is sufficiently remote from individual contract issues impacting a family member so as to not constitute a substantial conflict of interest in violation of the Code of Ethics. Regulation 1.3.1(B)(4)’s blanket prohibition against involvement in contract negotiations is based on an understanding that, during negotiations, the impact of decisions as to individual components of a contract can be difficult to predict. For that reason, an official’s participation in a contract issue that is seemingly unrelated to a family member can still have a resulting impact on other areas of the contract that would directly affect the family member. For example, in Advisory Opinion 2011-14, the Ethics Commission opined that a member of the Foster-Glocester Regional School Committee was prohibited by the Code of Ethics from participating in contract negotiations between the School Committee and the Foster-Glocester Teachers’ Union, given that her husband was a teacher in the Foster-Glocester Regional School District and a member of the Foster-Glocester Teachers’ Union. However, the petitioner could participate in the School Committee’s decision to accept or reject a contract in its entirety once negotiated by the School Committee and Foster-Glocester Teachers’ Union without her participation, provided that her husband was impacted by the contract as a member of a significant and definable class of persons, and not individually or to any greater extent than other similarly situated members of the Foster-Glocester Teachers’ Union. Therefore, as appropriately anticipated by the Petitioner, while he is prohibited from participating in contract negotiations concerning his brother’s employment, the Petitioner may take part in the Town Council’s discussions and vote relative to approving or rejecting the contract in its entirety, once it has been negotiated by others. Although the Petitioner is permitted to participate in the overall vote to approve or reject an employment contract as a whole, the Ethics Commission is aware that a general discussion can quickly devolve into a more specific review of contractual provisions. As such, the Petitioner must be vigilant about identifying such instances where a general conversation begins to focus on individual aspects of the contract that are likely to financially impact his brother. Should those circumstances arise, the Petitioner must recuse from further participation consistent with section 36-14-6 or seek further guidance from the Ethics Commission. Conclusion In conclusion, it is the opinion of the Ethics Commission that the Petitioner is prohibited by the Code of Ethics from participating in any Town Council matter in which his brother is a party or participant, or by which he will be financially impacted or receive an employment advantage. However, the Petitioner is not required to recuse when his brother appears before the Town Council in his official capacity as the Town’s Residential Building Inspector, provided that all of the other requirements of Regulation 1.2.1(B)(1) are satisfied. The Petitioner is also prohibited from participating in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of his brother. Further, the Petitioner is prohibited from participating in discussions and voting relative to any budgetary line item that addresses or affects the employment, compensation or benefits of his brother, but may vote to approve or reject a budget as a whole, once it has been negotiated by others. The Petitioner is likewise prohibited from participating in contract negotiations concerning his brother’s employment but may vote to approve or reject a contract as a whole. Notice of recusal in any instance shall be filed with the Ethics Commission consistent with section 36-14-6. This advisory opinion cannot anticipate every possible situation in which a conflict of interest might arise and, thus, provides only general guidance as to the application of the Code of Ethics based upon the facts represented above. The Petitioner is encouraged to seek additional advice from the Ethics Commission in the future as more specific questions regarding potential conflicts of interest arise. 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. 2018-59 A.O. 2016-26 A.O. 2013-8 A.O. 2011-14 A.O. 2010-35 Keywords Budget Collective Bargaining Nepotism Recusal