Advisory Opinion No. 2021-28

Rhode Island Ethics Commission

Advisory Opinion No. 2021-28

Approved: April 27, 2021

Re: Kate McMahon Macinanti

QUESTION PRESENTED:

The Petitioner, a member of the South Kingstown School Committee, a municipal elected position, who in her private capacity is employed by SK Wellness as its outreach coordinator, requests an advisory opinion regarding whether, following her recusal from any School Committee matter involving an application by SK Wellness for grant funding and/or a service contract with the South Kingstown School District, she is prohibited by the Code of Ethics from serving as a moderator and/or facilitator on a project funded by a grant or service contract awarded to SK Wellness by the School Committee.

RESPONSE:

It is the opinion of the Ethics Commission that the Petitioner, a member of the South Kingstown School Committee, a municipal elected position, who in her private capacity is employed by SK Wellness as its outreach coordinator is not, following her recusal from any School Committee matter involving an application by SK Wellness for grant funding and/or a service contract with the South Kingstown School District, prohibited by the Code of Ethics from serving as a moderator and/or facilitator on a project funded by a grant or service contract awarded to SK Wellness by the School Committee.

The Petitioner is a member of the School Committee in the Town of South Kingstown (“Town” or “South Kingstown”).  She was first appointed to the School Committee by the South Kingstown Town Council (“Town Council”) in 2017 due to a vacancy but was then elected to a four-year term in November of 2018.  The Petitioner represents that the School Committee oversees the entire care, control, and management of the public schools in South Kingstown (“School District”).  The Petitioner states that, in her private capacity, she has been employed by SK Wellness as its outreach coordinator for approximately one year.  She describes SK Wellness as a private non-profit agency dedicated to reducing the stigma associated with mental health treatment and to teaching children and adults the skills needed to successfully manage their own mental health and that of their loved ones.  She adds that SK Wellness offers resources and support to help people reduce stress, feel more engaged, and be happier.  The Petitioner identifies among her duties as outreach coordinator: reaching out to the community to make people aware of the services offered by SK Wellness; explaining the programs offered by SK Wellness; and connecting with other non-profit agencies and public schools statewide to exchange information and ideas and to collaborate on projects.  The Petitioner states that, while she distributes information about SK Wellness, it is her colleagues that go out into the community to provide services.

The Petitioner represents that SK Wellness is currently partnered with the School District on a number of projects for which SK Wellness provides services with no financial compensation from the School District or the Town.  She explains that said projects are currently supported by federal grant funding which will end in June of 2021.  The Petitioner anticipates that, given the impending loss of federal grant funding, SK Wellness will likely seek funding from state and local municipal resources to fund projects and, potentially, the salaries of SK Wellness employees, including the Petitioner.  The Petitioner represents that said state and local municipal resources could include the Rhode Island Foundation, the Town Council, and the School Committee. She further represents that the Executive Director and/or Director of Program Development for SK Wellness would appear before the School Committee to seek grant funding and/or service contracts with the School District.  The Petitioner states that she is prepared to recuse from participating in School Committee matters that would financially impact SK Wellness including, but not limited to, those in which the Executive Director and/or Director of Program Development appear to seek grant funding and/or service contracts with the School District. 

The Petitioner explains that, in the past, she has occasionally served as a moderator and/or facilitator for SK Wellness projects involving the School District.  She cites as an example her having hosted a recent meeting in Zoom format for youth groups, teachers, and staff from South Kingstown High School who met to discuss the stress that accompanied the COVID-19 pandemic.  She states that she would like to continue to moderate and/or facilitate SK Wellness projects funded by grants and/or service contracts from the School Committee in light of her pledge to recuse from participation in the consideration of the application by SK Wellness for said grants and/or service contracts, provided that she would not be prohibited by the Code of Ethics from doing so.  The Petitioner states that approximately 50 percent of the work performed by SK Wellness is for the School District, but that her own workload would remain at 90 percent capacity were she to refrain from moderating and/or facilitating projects funded by the School Committee.  The Petitioner states that she would have no personal interaction with the School Committee in her role as outreach coordinator, moderator, or facilitator.   It is in the context of these facts that the Petitioner seeks guidance from the Ethics Commission regarding whether, following her recusal from any School Committee matter involving the application by SK Wellness for grant funding and/or a service contract with the School District, she may serve as a moderator and/or facilitator on a project funded by a grant or service contract awarded by the School Committee.

Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her duties in the public interest.  R.I. Gen. Laws § 36-14-5(a).  A substantial conflict of interest exists if a public official has reason to believe or expect that she, any person within her family, her business associate, or her employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity.  Section 36-14-7(a).  The Code of Ethics further prohibits a public official from using her public office, or confidential information received through her public office, to obtain financial gain for herself, any person within her family, her business associate, or any business by which she is employed or which she represents.  Section 36-14-5(d).  Additionally, under the Code of Ethics, a public official must recuse herself from participation in a matter when her business associate or employer, or a person authorized by her business associate or employer, appears or presents evidence or arguments before her municipal agency.  Commission Regulation 520-RICR-00-00-1.2.1(A)(2)&(3) Additional Circumstances Warranting Recusal (36-14-5002) (“Regulation 1.2.1”).  Finally, pursuant to Commission Regulation 520-RICR-00-00-1.5.4 Municipal Official Revolving Door (36-14-5014) (“Regulation 1.5.4”), no municipal elected official or municipal school committee member, whether elected or appointed, while holding office and for a period of one (1) year after leaving municipal office, shall seek or accept employment with any municipal agency in the municipality in which the official serves.  The term  “employment” includes service as an independent contractor or consultant to any municipality or municipal agency, whether as an individual or a principal of an entity performing such service.  Regulation 1.5.4(A)(1).

Here, the Petitioner properly anticipates the Code of Ethics’ requirement that she recuse from participating in any School Committee matters that will financially impact her private employer and/or when her private employer, or a person authorized by her private employer, appears or presents evidence or arguments before the School Committee.  See, e.g., A.O. 2019-63 (opining that the Vice Chairman of the Rhode Island Real Estate Commission, who in his private capacity was employed by Residential Properties Ltd. was required to, among other things, recuse from participation in matters in which his private employer or his private employer’s representative appeared to present evidence or arguments on behalf of his employer, or was a party or participant in a matter before the Real Estate Commission); A.O. 2019-28 (opining that a member of the Providence City Council, who in her private capacity was an attorney with Handy Law, LLC, was prohibited by the Code of Ethics from participating in City Council matters in which her employer, her business associate, and/or any representative of her business associate appeared, and was further prohibited from participating in City Council matters which financially impacted her employer and/or her business associate); A.O. 2009-1 (opining that a member of the Scituate Town Council was required to recuse from participation in matters coming before the Town Council that concerned S & C Collins Bus Company, Inc., by which he was employed part-time as a bus driver, or in which it was reasonably foreseeable that there would be a financial impact upon that entity).

Regarding the Petitioner’s inquiry into whether she may serve as a moderator and/or facilitator for a project that is funded by a grant or service contract awarded by the School Committee to SK Wellness without the Petitioner’s participation, prior advisory opinions are instructive.  For example, in Advisory Opinion 2014-17, a member of the Charlestown Town Council was not prohibited from accepting employment as a hot dog cart operator from an individual with whom the Town of Charlestown had entered into a food concession contract at the Town Beach.  One year prior, when the individual seeking the contract had appeared before the Town Council pursuant to the recommendation by Director of Parks and Recreation that the Town Council award the contract to that individual, the petitioner recused from participating in the Town Council’s discussions and vote on the matter because of her friendship with the individual and the desire to avoid any appearance of impropriety.   In opining that the petitioner was not prohibited from accepting her desired employment, the Ethics Commission reasoned that, although municipal elected officials are barred from seeking or accepting employment or independent contract work from their municipalities, the Code of Ethics does not prohibit a municipal elected official from accepting private employment from a person or business that is a municipal vendor, at least under circumstances where the public official did not participate in the awarding of the contract.  See also A.O. 2011-25 (opining that a State Representative was not prohibited from accepting work as a subcontractor to a general contractor who had been awarded a state contract).

Here, the Petitioner would be barred as an individual or as a principal of SK Wellness from seeking or accepting employment, independent contract work, and even grant funding from the Town Council, the School Committee, or any municipal agency in South Kingstown, given the Petitioner’s membership on the School Committee.  However, based on the Petitioner’s representations, it is her employer that would be the municipal vendor should the Town Council, School Committee, or any other municipal agency in South Kingstown award grant funding and/or a service contract to SK Wellness.  Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not prohibited from serving as a moderator and/or facilitator for School District projects funded by grants and/or service contracts that were awarded to SK Wellness by the Town Council, the School Committee, or any municipal agency in South Kingstown without the Petitioner’s participation.  All notices of recusal shall be filed consistent with section 36-14-6. 

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:          
A.O. 2019-63             
A.O. 2019-28 
A.O. 2014-17 
A.O. 2011-25 
A.O. 2009-1               

Related Advisory Opinions:                          
§ 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-00-00-1.5.4 Municipal Official Revolving Door (36-14-5014)   

Keywords:      
Conflict of Interest    
Employer