Advisory Opinion No. 2021-13

Rhode Island Ethics Commission

Advisory Opinion No. 2021-13

Approved: February 9, 2021

Re:  Cody W. Clarkin

QUESTION PRESENTED

The Petitioner, a member of the Charlestown Town Council, a municipal elected position, requests an advisory opinion regarding: (1) whether he may serve as the Town Council’s liaison to the Parks and Recreation Commission while his father is employed by the Parks and Recreation Department as a seasonal employee and what limitations, if any, the Code of Ethics places upon the Petitioner in carrying out his public duties; and (2) whether he may participate in the Town Council’s vote on the Town’s budget, which includes funds for the Parks and Recreation Department.   

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Town of the Charlestown Town Council, a municipal elected position first, is not prohibited by the Code of Ethics from serving as the Town Council’s liaison to the Parks and Recreation Commission while his father is employed by the Parks and Recreation Department as a seasonal employee.  However, the Petitioner is prohibited by the Code of Ethics from participating in any Town Council and/or Parks and Recreation Commission matters in which his father is a party or participant, or by which his father will be financially impacted or receive an employment advantage.  The Petitioner is not required to recuse when his father appears before the Town Council or the Parks and Recreation Commission in his official capacity as an employee of the Parks and Recreation Department, 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 father.  Second, the Petitioner is prohibited from participating in Town Council discussions and voting relative to any budgetary line item that addresses or affects the employment, compensation, or benefits of his father, but may vote to approve or reject a budget as a whole, provided that his father is impacted by the entire budget as a member of a significant and definable class of persons, and not individually or to greater extent than any other similarly situated member of the class. 

The Petitioner was elected to the Charlestown Town Council (“Town Council”) on November 3, 2020.  He informs that the Town Council is charged with carrying out the legislative duties of the Town of Charlestown (“Town” or “Charlestown”) as prescribed by the Town’s Home Rule Charter including, but not limited to, the enactment of ordinances, the filling of board and commission vacancies, and the review of the Town’s budget.  Specifically, with regard to the Town budget, the Petitioner states that it is prepared by the Town’s Budget Commission, followed by a review and vote by the Town Council.  The Petitioner informs that the Town Council reviews the Town’s budget at a hearing facilitated by the Town moderator.  The Town Council normally votes on the budget as a whole, but could discuss and amend various line items.  Upon review and vote by the Town Council, the Town’s budget is then presented for approval by the registered voters at a budget referendum.  The Petitioner notes that the Town’s budget includes funds for the Town’s Parks and Recreation Department. 

The Petitioner states that, prior to his election to the Town Council, he was employed by the Town’s Parks and Recreation Department for seven (7) years as a seasonal employee during the summer and as a part-time employee in the off-season.  He adds that this employment ended on September 30, 2020.  The Petitioner represents that he served in various positions, including Assistant Director of the Ninigret Summer Camp, Beach Manager, Summer Assistant, and as a staff member of other programs and events.  The Petitioner states that his father has also been a seasonal employee in the Parks and Recreation Department for the past eleven (11) years, serving as a Summer Assistant in charge of beach operations.  The Petitioner explains that his father’s employment typically runs from May through September and that his father plans to continue this employment for the foreseeable future.[1]

The Petitioner represents that, from January of 2017 to December of 2019, he served as a member of the Charlestown Parks and Recreation Commission, a board that is advisory to the Town Council.  The Petitioner would now like to be the Town Council’s liaison to the Parks and Recreation Commission and states that the Town Council’s discussions and vote relative to the appointment of a liaison have been postponed until February pending issuance of the instant advisory opinion by the Ethics Commission.  The Petitioner states that the Parks and Recreation Commission does not vote on any matters of employment but, rather, reviews and advises the Town Council on capital projects, recreational programs, policies, and ordinances, as well as the maintenance, acquisition, and development of park and recreation facilities.  He adds that the liaison participates in the Parks and Recreation Commission’s discussions but has no voting authority.  Based on this set of facts the Petitioner seeks guidance from the Ethics Commission regarding whether he may: (1) serve as the liaison on the Parks and Recreation Commission while his father is employed by the Parks and Recreation Department and what limitations, if any, the Code of Ethics places upon the Petitioner in carrying out his public duties; and (2) vote on the Town’s budget which includes funds for the Parks and Recreation Department. 

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 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, his business associate or his 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 member, his business associate, or any business by which he is employed or which he represents.  Section 36-14-5(d).

Serving as the Town Council’s Liaison to the Parks and Recreation Commission

The Ethics Commission has declined to adopt a blanket or absolute prohibition against one family member serving or being employed in the same department, agency, or municipality as another family member.  Here, the Petitioner is not prohibited by the Code of Ethics from serving as the Town Council’s liaison to the Parks and Recreation Commission while his father is employed by the Parks and Recreation Department.  However, as outlined below, the Code of Ethics places certain limitations upon the Petitioner in carrying out his duties in order to prevent any potential conflicts of interest.  See, e.g., 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 that 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). 

Participation in Matters That Involve or Financially Impact the Petitioner’s Father

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 “son.”  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) that the family member would not otherwise have had.

Further, Commission Regulation 520-RICR-00-00-1.2.1(A)(1) Additional Circumstances Warranting Recusal (36-14-5002) (“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.  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).  A public official is not required, however, to recuse himself pursuant to this or any other provision of the Code of Ethics when his family member is before the public official’s 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.  Regulation 1.2.1(B)(1).  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 then 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 father is a party to or participant in a matter before the Town Council or the Parks and Recreation Commission, or will be directly financially impacted or obtain an employment advantage by the Town Council’s or Parks and Recreation Commission’s decision-making, the Petitioner is required to recuse consistent with section 36-14-6.  However, were the Petitioner’s father to appear before the Town Council or the Parks and Recreation Commission solely in his public capacity as a duly authorized member or employee of the Parks and Recreation Department, to participate in non-adversarial information sharing or coordination of activities between the two agencies, provided that his father is not otherwise a party or participant, and has no personal financial interest, in the matter under discussion, the Petitioner would not be required by the Code of Ethics to recuse. 

Participation in Supervision and Evaluation of Petitioner’s Father

A public official is prohibited by the Code of Ethics 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).  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 is prohibited from participating in Town Council and/or Parks and Recreation Commission matters that involve the supervision, evaluation, appointment, classification, promotion, transfer or discipline of his father. 

Participating in Discussions and Voting on the Town’s Budget

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, a 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 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.”  Regulation 1.3.1(B)(3)(c). 

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.  See also 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).

Therefore, in the instant matter, while the Petitioner 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 father, the Petitioner may participate in the Town Council’s discussion and vote to approve or reject the entire budget as a whole, provided that his father is impacted by the entire budget as a member of a significant and definable class of persons, and not individually or to greater extent than any other similarly situated member of the class.  However, the Ethics Commission is aware that a general discussion can quickly devolve into a narrower 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 Town’s budget that are likely to financially impact his father.  In such circumstances, the Petitioner must recuse from further participation consistent with 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 not prohibited by the Code of Ethics from serving as the Town Council’s liaison to the Parks and Recreation Commission while his father is employed by the Parks and Recreation Department.  However, the Petitioner is prohibited by the Code of Ethics from participating in any Town Council and/or Parks and Recreation Commission matters in which his father is a party or participant, or by which his father will be financially impacted or receive an employment advantage.  The Petitioner is not required to recuse when his father appears before the Town Council or the Parks and Recreation Commission in his official capacity as an employee of the Parks and Recreation Department, 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 father.  Lastly, the Petitioner is prohibited from participating in Town Council discussions and voting relative to any budgetary line item that addresses or affects the employment, compensation or benefits of his father, but may vote to approve or reject a budget as a whole, provided that his father is impacted by the entire budget as a member of a significant and definable class of persons, and not individually or to greater extent than any other similarly situated member of the class.  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. 2016-30
A.O. 2016-26
A.O. 2013-8
A.O. 2010-35
A.O. 2005-30
A.O. 2002-48
A.O. 2002-44

Keywords: 
Family: Public Employment
Budget
Nepotism