Advisory Opinion No. 2000-39

Re: Jacqueline Zahn

QUESTION PRESENTED

The petitioner, a Burrillville Town Councilor, a municipal elected position, requests an advisory opinion as to whether she may participate in discussions and vote on the Council’s consideration of a conflict between landowners and the owner of Pascoag Lake, given that the Episcopal Diocese of Rhode Island, which owns property abutting the Lake, employs her spouse.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Burrillville Town Councilor, a municipal elected position, may participate in discussions and vote on the Council’s consideration of a conflict between landowners and the owner of Pascoag Lake, despite the fact that her spouse is employed by the Episcopal Diocese of Rhode Island, which owns property abutting the Lake. The petitioner’s relationship with the Diocese is too remote to implicate the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(d), and there is no evidence that the Council’s consideration of the issue would impact her spouse’s employment.

The petitioner advises that the Burrillville Town Council will be considering matters involving a dispute between local landowners and the owner of Pascoag Lake. The Episcopal Diocese of Rhode Island employs her spouse at its Episcopal Conference Center (ECC), which is located on Pascoag Lake. As the ECC’s Superintendent, her spouse’s duties include supervising the maintenance of the facility’s 180 acres. She represents that the Council’s consideration of the dispute will not impact her spouse’s employment.

Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). An official has an interest in substantial conflict with her official duties if it is likely that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, a family member, or her employer. See R.I. Gen. Laws § 36-14-7(a). Also, a public official may not use her public office or confidential information received through her office to obtain financial gain, other than that provided by law, for herself, a family member, or an employer. See R.I. Gen. Laws § 36-14-5(d). Finally, Commission Regulation 36-14-5002 requires an official to recuse herself whenever her employer or the interest of her employer comes before her board or agency.

After considering the relevant provisions of the Code of Ethics and past advisory opinions, the Commission concludes that the employment of the petitioner’s spouse at the Episcopal Conference Center does not present an inherent conflict of interest with her duties as a Burrillville Town Councilor. The petitioner does not have an inherent conflict of interest that would preclude her participation in matters involving the Diocese’s ownership of land abutting Pascoag Lake. The relevant provisions of the Code, namely sections 5(a) and 5(d) and Commission Regulation 5002, do not require recusal for matters involving a spouse’s employer.

Further, there is no evidence that matters involving a dispute between landowners and the owner of Pascoag Lake would affect the petitioner’s spouse’s employment as the Superintendent at the ECC. The Code does not generally preclude a public official from participating in matters affecting a spouse’s employer unless there it is reasonably foreseeable that the matter under consideration would affect the family member. See R.I. Gen. Laws § 36-14-7(a); see also A.O. 99-28 (concluding that a Westerly Zoning Board of Review member could participate in the review of the Bess Eaton Donut and Flour Company’s application for a special use permit to construct a drive-thru in two new locations since his relationship with the applicant is too remote to implicate the Code’s prohibitions and there is no evidence that the construction of the drive-thrus would impact his spouse’s employment in the applicant’s bakery department); and A.O. 98-45 (advising the Administrator of the Rhode Island Division of Public Utilities and Carriers that he could participate in matters that relate to the telecommunications industry or Bell Atlantic despite the fact this his spouse was employed by Bell Atlantic since there was no evidence that the matter would impact his wife’s employment interest).

Finally, whether the petitioner’s participation in Council matters involving a dispute over the use of Pascoag Lake results in an appearance of impropriety is not a matter for the Ethics Commission to decide. When enacting the Code of Ethics, the General Assembly included as one of its legislative purposes the elimination of appearances of impropriety. The legislature did not, however, make the appearance of impropriety a violation of the law, nor do the constitutional provisions that mandated the creation of the Ethics Commission establish that an appearance of impropriety constitutes a violation of the law. Therefore, while this Commission may recommend to the petitioner that she should publicly disclose the nature of her relationship with the ECC, and the basis upon which she intends to participate (or not), it will not opine as to whether certain actions create an appearance of impropriety. That determination, as well as whether and/or how to deal with the consequences, is left to public officials themselves, to public bodies, and, ultimately, to the public at large.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-6
36-14-7(a)
36-14-5002

Related Advisory Opinions:

2000-16
2000-9
99-79
99-28
98-45
97-83
96-105
95-12
91-34

Keywords:

Family: Private employment