Advisory Opinion No. 2001-58

Re: Helen Hardy-Dixon

QUESTION PRESENTED

The petitioner, a Foster Planning Board member, a municipal appointed position, who is employed by the Foster School Department, a municipal employee position, requests an advisory opinion as to whether she must recuse from participation and/or vote on capital budget issues.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Foster Planning Board member, a municipal appointed position, who is employed by the Foster School Department, a municipal employee position, may participate and/or vote on capital budget issues, provided that she may not participate and/or vote on the School Department’s budget as a line item or matters related to personnel issues affecting her as a School Department employee.

Under the Code of Ethics, a public official or employee 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). An official will have 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, employer, business associate, or a business that she represents. See R.I. Gen. Laws § 36-14-7(a). Also, R.I. Gen. Laws § 36-14-5(b) prohibits a public official or employee from accepting other employment that will either impair her independence of judgment as to her official duties or employment or require her to disclose confidential information acquired by her in the course of her official duties. Finally, R.I. Gen. Laws § 36-14-5(d) provides that a public official may not use her office for pecuniary gain, other than provided by law, for herself, a family member, employer, business associate, or a business that she represents.

The Commission previously has concluded that individuals may simultaneously serve as members of a school committee within a municipality while that municipality’s school department employs them or their family members. Likewise, the Commission has held that individuals may serve on a city or town council while a school department within that municipality simultaneously employs them. See e.g., A.O. 95-44; A.O. 95-34; and A.O. 95-15. Further, the Commission has opined that town council members with family members in their town’s school departments may vote on the town’s overall budget even if by so doing they are voting on school department matters that affect members of their families. The Commission has reasoned that in circumstances such as those, voting on an overall town budget is sufficiently remote from specific items within a school department budget so as not to constitute a substantial conflict of interest. See R.I. Gen. Laws § 36-14-5(a).

In an analogous context, the Commission held that a full-time or substitute teacher employed by the Foster School Department could seek election to and serve on the Foster Town Council. See e.g., A.O. 2000-61. However, there the Commission concluded that if the Council considers the School Department budget as a separate line item, the individual must recuse herself from any discussions and/or votes related to that line item based upon her employment relationship with the Department. Cf. A.O. 2000-63 (opining that a Narragansett Town Councilor may accept a teaching position within the School Department, but must recuse herself from the Council’s consideration of the Department’s budget if presented to the Council as a separate line-item).

In its earlier opinions, the Commission had concluded that city/town councilors and school committee members would not violate the Code of Ethics by accepting employment with their municipalities’ school departments, provided that they recused from participation and/or vote on matters specifically affecting their individual employment. The Commission advised such individuals that they could participate and/or vote on school budgets and school issues, generally. E.g. A.O. 95-72 (opining that the Newport Plumbing and Mechanical Inspector, also employed by the Newport School Department as a Plumbing Apprentice Instructor, would not violate the Code of Ethics were he to pursue a seat on the Newport School Committee, provided that he does not participate and/or vote on any specific matter concerning the Plumbing Apprentice Program or his particular employment, although he may vote on school issues generally or school budgets); A.O. 95-44 (finding that an electrician employed by the Newport School Department simultaneously may serve on the City Council and participate in discussions or votes on the school budget, as a whole or as a line item, provided that he recuses on personnel issues or other matters which particularly affect him).

More recently, however, the Commission has held that such public officials must recuse from participation and/or vote on specific line items relating to the school departments by which they are employed, in recognition of the fact that their employment relationships trigger the prohibitions of R.I. Gen. Laws §§ 36-14-5(a), 5(d) and 7(a). See A.O. 2000-63; A.O. 2000-61, supra. Accordingly, the petitioner may participate as a Foster Planning Board member in discussions and votes on the Town’s capital budget. However, she may not participate and/or vote on the school budget as a line item or on matters related to personnel issues affecting her as a School Department employee. Notice of recusal should be filed with both the Town of Foster and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2000-63

2000-61

98-88

98-37

97-35

97-19

96-69

95-72

95-44

95-34

95-15

Keywords:

Budgets

Dual public roles