Advisory Opinion No. 2000-92

Re: Michael P. DeFrancesco

QUESTION PRESENTED

The petitioner, an Exeter Planning Board member, a municipal appointed position, requests an advisory opinion as to whether a Planning Board member who previously recused from participation in matters related to the Ladd Center project may now participate in such matters pursuant to the Rule of Necessity, given that a recent vacancy has left the Board without a quorum.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that one or more members of the Exeter Planning Board municipal appointed positions, may participate and vote on certain matters pursuant to the Rule of Necessity exception where his or her participation is necessary to establish a quorum. However, the Board member selected to participate should be the individual whose interest would be affected least by his or her participation in matters involving, in this instance, the Ladd Center project.

Under the Code of Ethics, a public official may not participate in any matter in which he or she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his or her duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). Pursuant to R.I. Gen. Laws § 36-14-5(d), a public official also is prohibited from using his or her public position or confidential information received through his or her position to obtain financial gain, other than that provided by law, for himself or herself, a business associate, or any business in which the official is employed or which the official represents.

In a previous advisory opinion, the Commission concluded that the Code of Ethics prohibits the petitioner from participating in the Exeter Planning Board’s consideration of matters involving the Ladd Center project. See A.O. 99-130 (finding that he may not participate in matters concerning a Job Corps facility to be located at the Ladd Center given that his engineering firm is preparing the master plan for the Ladd Center under a contract with the Rhode Island Economic Development Corporation). The petitioner represents that another Board member voluntarily recused himself from participating in Ladd Center project matters due to his status as an employee of the Department of Environmental Management, an agency whose regulations may impact the project. He indicates that one of the remaining three Board members will vacate his position on November 20, 2000, thereby leaving the Board without a quorum to consider Ladd Center matters. The new Town Council will convene in December to begin the processing of advertising for and interviewing replacement candidates, but the vacancy may not be filled for two months.

This Commission has recognized a “Rule of Necessity” exception in a narrow range of situations where recusals would inhibit governmental processes, such as where the majority of a public body’s members must recuse themselves and the resulting failure of the quorum renders the entity unable to act. See, e.g., A.O. 92-1 and A.O. 98-43. In past advisory opinions, the Commission has found circumstances warranting its application where the matter at issue affected the municipality as a whole and no official action could otherwise be taken. See A.O. 97-55 (where denial would prevent the Westerly Town Council from approving the Town budget); and, A.O. 93-31 (where exception needed for the Town of Richmond to accept new streets into its public roads system). The Commission also granted an exception where the inability of the Workers Compensation Court’s Medical Advisory Board to select a preferred provider network would affect health care options for all injured workers. A.O. 96-65.

Here, if the Planning Board were not able to achieve a quorum because of recusals required by the Code of Ethics, the Rule of Necessity would allow the participation of one or more Board members, notwithstanding their conflicts of interest, so as to achieve a quorum. However, consistent with the Rule of Necessity as interpreted by this Commission and the courts, the Board member selected to participate should be the individual whose interest would be affected least by his or her participation in the matter. Based upon the facts presented, presumably the petitioner would not be the Board member whose interest would be affected least by his participation. Additionally, the participating Board member, whoever it should be, should make public disclosure of these facts and of the basis upon which he or she believes he or she can objectively participate and vote in the matter at issue, all prior to his or her participation and voting in connection with same.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-7(a)

36-14-6

Related Advisory Opinions:

2000-74

99-130

99-82

98-127

98-43

97-55

96-65

95-49

93-31

92-1

Keywords:

Recusal

Rule of necessity