Advisory Opinion No. 2002-21

Re: Ms. Norma-Jean Pirri

QUESTION PRESENTED

The petitioner, a Johnston School Committee candidate, a municipal elected position, requests an advisory opinion as to whether, if elected, she may continue to direct after school dance programs within that municipality and choreograph the Johnston High School Drama Club’s annual musical.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Johnston School Committee candidate, a municipal elected position, if elected may continue to direct after school dance programs within that municipality and choreograph the Johnston High School Drama Club’s annual musical, subject to certain restrictions. The Code of Ethics requires her recusal from participation and/or vote in the School Committee’s consideration of any matters relating to the dance and/or drama programs in which she is involved. Further, the prohibitions contained in Section 5(e) and Regulation 5006 bar her from seeking or accepting appointment/reappointment by the School Committee to any position which carries with it any financial benefit or remuneration for a period of one year following her termination of office.

The petitioner advises that she will be seeking election to the Johnston School Committee in 2002. Since 1997, she has been the Director of three after school dance programs in the Johnston Public Schools. For her participation at the Winsor Hill Elementary and Ferri Middle Schools, the Parent Teacher Organizations compensate her with funds generated by the dance programs. She advises that her service at the Johnston High School has been as a parent volunteer. She informs that the High School Principal suggested that she petition the School Committee to have the High School dance program certified as an official Dance Team under her direction. She indicates that the proposal may involve a stipend for her service. Further, since 1999 the High School Drama Department has hired her to choreograph its annual musical and has compensated her with funds generated by the High School Drama Club.

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 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 her activity, to the official, a family member, or a business associate. See R.I. Gen. Laws § 36-14-7(a). R.I. Gen. Laws § 36-14-5(b) prohibits a public official 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. A public official may not use her public position to obtain financial gain, other than that provided by law, for herself, her family or business associates. See R.I. Gen. Laws § 36-14-5(d).

The Code of Ethics further provides that, for a period of one year after a person has officially terminated his or her position with any state or municipal agency, that person shall not appear before the state or municipal agency on which the person had served. R.I. Gen. Laws §§ 36-14-5(e)(1) and 5(e)(4). This “revolving door” language is provided so as to minimize any influence the former public official may have in a consideration by his former agency that is not available to the general public. Pursuant to Commission Regulation 5006, no elected or appointed official may accept any appointment by the body of which he or she is a member, to any position which carries with it any financial benefit or remuneration while a member of the body and for a period of one year after termination of membership on said body, unless the Ethics Commission shall give its approval of such appointment. Regulation 5006 further provides that the Commission shall not grant such approval unless it “is satisfied that denial of such employment or position would create a substantial hardship for the body, board, or municipality.”

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.

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).

Here, the petitioner wishes to continue her involvement in various extracurricular programs in the Johnston Public Schools upon her election to the Johnston School Committee. She is not an employee of the School Department, but rather receives a stipend for her services directly from the dance programs and drama club at issue. Her relationship with the subject schools and their extracurricular programs is analogous to that of an independent contractor. The Commission concludes that, while the Code of Ethics does not strictly prohibit her continued involvement in these activities if elected to the School Committee, it does limit the scope of her activities.

Since the petitioner’s service as Director of the after school dance programs at the Winsor Elementary and Ferri Middle Schools precedes her election to the School Committee, she may continue to serve in said positions without running afoul of the Code of Ethics. In her capacity as a School Committee member, however, she must recuse from participation and/or vote in the School Committee’s consideration of any matters involving the dance programs at issue. While she may participate in a review of the School Department’s budget as a whole, she may not participate in the consideration of any specific budgetary line items that affect the dance programs. See A.O. 95-72. Notice of recusal should be filed both with the Ethics Commission and the Johnston School Committee in accordance with R.I. Gen. Laws § 36-14-6.

Similarly, the petitioner may continue to provide choreography services to the High School for its annual musical production. As with her dance program activities, she must recuse from participation and/or vote in the School Committee’s consideration of any matters affecting the High School Drama Department and/or Drama Club. The petitioner advises that the High School Drama Department hires her as a choreographer on an annual basis. Pursuant to R.I. Gen. Laws § 36-14-5(h), a public official shall not enter into any contract with any state or municipal agency unless the contract has been awarded through a process of public notice and disclosure of financial details. Therefore, if elected, the petitioner’s subsequent provision of choreography services must be disclosed in accordance with Section 5(h).

The petitioner represents that she may petition the School Committee for certification of the High School’s dance program as an official Dance Team under her direction. The Code of Ethics prohibits her from bringing said proposal before the School Committee while serving as a member of the School Committee and for a period of one year after her termination of office. See R.I. Gen. Laws § 36-14-5(e). Therefore, any such proposal must be brought before the School Committee, and acted upon, prior to her election to that body in order to comply with the dictates of the revolving door prohibition.

The Commission further cautions the petitioner that the prohibitions of Regulation 5006 may be triggered if any of her current positions and/or the proposed High School Dance Team position would invoke the School Committee’s appointment powers. She may not seek or accept appointment/ reappointment to these remunerated positions while serving on the School Committee and for one year thereafter. See A.O. 97-17 (concluding that a Warren Town Councilor may continue to serve on the Bristol County Water Authority since he was appointed prior to his election to the Council, but may not seek or accept reappointment while serving on the Council and for one year thereafter).

The Commission has permitted an official to accept such an appointment within that period, provided that the appointment was to a volunteer position or the official agreed to waive the receipt of compensation and benefits and serve in a volunteer capacity. See A.O. 96-35 (advising a North Kingstown School Committee member that he may accept appointment as a baseball coach for the School Department provided that he serves without compensation). See also A.O. 99-101. However, any such volunteer appointment must not be a ruse to subvert the revolving door provision. See A.O. 97-117 (concluding that the former Town Councilor may not circumvent the Code of Ethics by serving as an unpaid volunteer during the one year period after expiration of his term of office and subsequently accept compensation). The Commission cautions the petitioner to be particularly vigilant as to the matters in which she participates as a School Committee member and urges her to seek further guidance and clarification if the scope of her public school activities should change.

Code Citations:

36-14-5(a)
36-14-5(b)
36-14-5(d)
36-14-5(e)
36-14-5(h)
36-14-6
36-14-7(a)
36-14-5006

Related Advisory Opinions:

2001-53
2001-4
99-101
99-94
99-60
99-2
98-83
97-138
97-117
97-27
97-26
97-17
96-85
96-35

Keywords:

Candidate
Dual public roles
Revolving door