Advisory Opinion No. 2021-15 Rhode Island Ethics Commission Advisory Opinion No. 2021-15 Approved: February 9, 2021 Re: John Edwards QUESTION PRESENTED: The Petitioner, a member of the Tiverton Budget Committee, a municipal appointed position, requests an advisory opinion regarding what restrictions, if any, the Code of Ethics places upon him in carrying out his Budget Committee duties, specifically relative to the Budget Committee’s discussions and voting on the Tiverton School Department’s Budget, given that his spouse is an employee of said School Department. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Tiverton Budget Committee, a municipal appointed position, whose spouse is an employee of the Tiverton School Department is prohibited by the Code of Ethics from participating in the Budget Committee’s discussions and voting relating to School Department budgetary line items that would address or affect the employment, compensation, or benefits of his spouse. However, the Petitioner may participate in the Budget Committee’s discussions and voting to approve or reject other budgetary line items, and the School Department’s entire budget as a whole, provided that his spouse 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 states that he was appointed by the Tiverton Town Council (“Town Council”) to fill a vacancy on the Tiverton Budget Committee (“Budget Committee”) on January 11, 2021. He further states that the Budget Committee is comprised of eleven members tasked by the Tiverton Town Charter with reviewing and deliberating on budget requests submitted by the Town Administrator, the Town Clerk, the Town Treasurer, and the Tiverton School Department. After the Budget Committee has finalized its recommendations regarding the aforementioned budget requests, the Budget Committee then presents its recommendations to the electorate who will then vote at the annual Tiverton Financial Town Hearing. The Petitioner represents that his spouse is a kindergarten teacher employed by the Tiverton School Department (“School Department”) and a member of the National Education Association of Rhode Island’s collective bargaining unit. He further represents that, as an employee of the School Department, her salary is included in the total budget of the School Department and is also a part of the salary and benefits line items presented to the Budget Committee. The Petitioner states that the salaries and benefits of the teachers, including his spouse, are governed by the collective bargaining agreement negotiated between the School Department and the local union without the participation of the Budget Committee. The Petitioner informs that, although the Budget Committee has no oversight authority over the collective bargaining contracts, the Budget Committee members may inquire of the School Department regarding the content of the collective bargaining agreement during the School Department’s presentation of its budget request before the Budget Committee. The Petitioner notes that his spouse does not take part in the presentation of the School Department’s budget request. Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding what restrictions, if any, the Code of Ethics places upon him in carrying out his Budget Committee duties, specifically relative to the Budget Committee’s discussions and voting on the Tiverton School Department’s Budget. 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 any person within his family, his business associate, or any business by which he is employed or which he represents. Section 36-14-5(d). Finally, Commission Regulation 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) (“Regulation 1.3.1”) contains provisions aimed at curbing nepotism, and particularly addresses the question raised by the Petitioner. 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). The basis for allowing such participation is an assumption that a vote on an entire budget is sufficiently remote from most individual line items impacting a family member so as not to constitute a substantial conflict of interest in violation of the Code of Ethics. The definition of “any person within his [] family” specifically includes “spouse.” Regulation 1.3.1(A)(2). The Ethics Commission applied the above provisions of the Code of Ethics to an analogous question in Advisory Opinion 2016-30, issued to a member of the Little Compton Budget Committee (“LC Budget Committee”) whose spouse was a member of the Little Compton School Committee (“LC School Committee”) for which the spouse received a stipend. There, the Ethics Commission opined that the petitioner was prohibited from participating in any LC Budget Committee discussions or voting on line items in the LC School Committee budget related to LC School Committee members’ stipends. Nonetheless, the petitioner was permitted to participate in the Little Compton Budget Committee’s discussions and voting relative to approving or rejecting other line items in the LC School Committee budget and the LC School Committee budget as a whole. See also A.O. 2020-44 (opining that a member of the Town of New Shoreham Town Council, whose brother was employed by the Town as its Residential Building Inspector, was 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 but could participate in the Town Council’s discussions and voting relative to approving or rejecting the entire budget as a whole); A.O. 2010-35 (opining, 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 discussions or voting 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 discussions and voting relative to approving or rejecting the entire budget as a whole). Here, based on the Petitioner’s representations, the applicable provisions of the Code of Ethics, and prior advisory opinions issued, it is the opinion of the Ethics Commission that the Petitioner is prohibited from participating in the Budget Committee’s discussions and voting relating to budgetary line items that would address or affect the employment, compensation, or benefits of his spouse. However, the Petitioner may participate in the Budget Committee’s discussions and voting to approve or reject other budgetary line items and the entire School Department budget as a whole, provided that his spouse 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. However, the Petitioner must be vigilant to identify instances where a general conversation begins to focus on individual aspects of the School Department’s budget that are likely to financially impact his spouse. In such circumstances, the Petitioner must recuse from further participation consistent with section 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. 2020-44 A.O. 2016-30 A.O. 2010-35 Keywords: Family: Public Employment Budget Nepotism