Advisory Opinion No. 2021-38

Rhode Island Ethics Commission

Advisory Opinion No. 2021-38

Approved: May 18, 2021

Re:  Robert Jones

QUESTION PRESENTED:

The Petitioner, a former member of the North Kingstown School Committee, a municipal elected position, requests an advisory opinion regarding whether he may continue to serve on the North Kingstown Charter Commission and accept an appointment to serve on the North Kingstown Audit Committee, both unpaid municipal appointed positions, prior to the expiration of one year following the Petitioner’s severance from his position as a School Committee member. 

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former member of the North Kingstown School Committee, a municipal elected position, may continue to serve on the North Kingstown Charter Commission and accept appointment to serve on the North Kingstown Audit Committee, both unpaid municipal appointed positions, prior to the expiration of one year following the Petitioner’s severance from his position as a School Committee member. 

The Petitioner represents that he is a former elected member of the North Kingstown School Committee (“School Committee”), on which he served from December of 2012 to December of 2020.  He states that in January of 2021, he was appointed by the North Kingstown Town Council (“Town Council”) to a two-year term on the North Kingstown Charter Commission (“Charter Commission”).  He explains that the Charter Commission is established by the North Kingstown Charter (“Charter”) and functions merely as an advisory panel to the Town Council.  The Petitioner notes that, pursuant to the Charter, “[i]t shall be the duty of said commission to convene at the request of the Town Council to consider and make recommendations concerning any issue or issues relating to the Charter, or provisions thereof, which the  Town Council shall lay before it, and report thereon to the Town Council.”   The Petitioner represents that the members of the Charter Commission receive no compensation, stipend, gifts, or honoraria for their services performed and serve at the pleasure of, and report only to, the Town Council.  He further represents that the Charter Commission, while open to receiving input on agenda items from the School Committee or the School Department, just as it would from any other citizen or organization, does not appear nor is it required to appear before the School Committee. 

The Petitioner explains that he is not employed by the Town of North Kingstown (“Town”) nor by any other public agency and that, to the best of his knowledge, his private employer, Bryant University, has no contracts with the Town or the School Department.  The Petitioner further explains that the work of the Charter Commission does not involve decisions relative to spending of local funds and does not include review or advice on requests for proposals, current bids or spending.  He represents that he has no family members employed by the Town, nor is he aware of any potential conflicts of interest regarding the work he performs for the Charter Commission.  The Petitioner notes that he has no familial or business relationship with any member of the Town Council, the Town Clerk, or the Town Manager.  Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether he may continue to serve on the Charter Commission. 

The Petitioner also seeks guidance regarding whether he may accept appointment by the Town Council to fill a vacancy on the North Kingstown Audit Committee (“Audit Committee”), on which he had once served prior to his election to the School Committee.  The Petitioner represents that he has been approached by the School District Superintendent who inquired regarding whether the Petitioner might be interested in filling the vacancy.  The Petitioner states that the Town Council makes the appointment to fill the current vacancy from a list of up to three candidates recommended by the School Committee.  The Petitioner further states that the members of the Audit Committee do not receive any compensation, stipend, gifts, or honoraria for the services they perform.  He explains that, unlike the Charter Commission, the Audit Committee has some oversight functions which the Petitioner describes as “direct responsibility for the oversight of the independent auditor.”  The Petitioner further explains that the current audit firm employed by the Town is still under a multi-year contract.  The Petitioner states that he had no input in the selection of the audit firm nor does he have any financial connection to it, either personally or through his private employer.  He represents that the School Committee does not vote or select the audit firm, although the firm does audit both the Town and the School financial records. 


Under Commission Regulation 520-RICR-00-00-1.5.4 Municipal Official Revolving Door (36-14-5014) (“Regulation 1.5.4”), municipal elected officials and school committee members are prohibited from seeking or accepting employment in the same municipality, including service as an independent contractor or consultant, while serving in office and for a period of one year after leaving office.  Furthermore, Commission Regulation 520-RICR-00-00-1.5.1 Employment from Own Board (36-14-5006) (“Regulation 1.5.1”) prohibits any elected or appointed official from accepting any appointment or election that requires approval by the body of which he is or was a member, to any position which carries with it any financial benefit or remuneration, until the expiration of one (1) year after termination of his membership in or on such body.

Notably, the Ethics Commission has determined that the receipt of compensation for services rendered is a necessary element in the application of Regulation 1.5.4. as well as 1.5.1.  See A.O. 2013-11 (opining that an elected member of the Pascoag Fire District Board of Commissioners could not seek or accept a position as a volunteer firefighter in the same district while holding office as a Commissioner, and for one year thereafter, because volunteer firefighters were paid for their services as independent contractors); A.O. 2004-36 (opining that a state employee sitting on the Rhode Island Water Resources Board as the designee of the Director of Administration could not accept, if offered, employment as the General Manager of the Water Resources Board).  Thus, the Ethics Commission has permitted a public official to accept an appointment that otherwise fell within the provisions of Regulations 1.5.4 and 1.5.1, provided that the appointment was to a volunteer position.  See, e.g., A.O. 2016-46 (opining that a member of Pawtucket City Council could accept appointment to the Pawtucket Water Supply Board, an unpaid position, within one year of the petitioner’s official severance from his position as City Councilor).

Here, the Petitioner states that the Town Council is the public body vested with the authority to appoint both the members of the Charter Commission and the Audit Committee, notwithstanding that the School Committee, the public body of which the Petitioner was a member, makes the recommendation for appointment to the Audit Committee for the current vacancy.  Further, the Petitioner expressly represents that the Charter Commission and the Audit Committee’s members do not receive any financial benefit or other compensation for their services.  Accordingly, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from continuing to serve on the Charter Commission and from accepting an appointment to, and serving on, the Audit Committee, both without compensation, before the expiration of one year following the Petitioner’s official severance from his position as a School Committee member.

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:
520-RICR-00-00-1.5.1 Employment from Own Board (36-14-5006)
520-RICR-00-00-1.5.4 Municipal Official Revolving Door (36-14-5014)

Related Advisory Opinions:
A.O. 2018-7
A.O. 2016-46
A.O. 2013-11
A.O. 2004-36

Keywords: 
Revolving Door