Advisory Opinion No. 2002-44

Re: William A. Foley

QUESTION PRESENTED

The petitioner, a Warwick City Councilor, a municipal elected position, requests an advisory opinion as to whether he must recuse from participation and/or vote on budget issues given that his spouse is employed by the Warwick School Department as a teacher’s aide.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Warwick City Councilor, a municipal elected position, may participate and/or vote on budget issues, provided that he may not participate and/or vote on the School Department’s budget as a line item or on matters related to personnel issues affecting his spouse as a School Department employee.

Under the Code of Ethics, a public official or employee may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). An official will have an interest in substantial conflict with his 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 he represents. See R.I. Gen. Laws § 36-14-7(a). Finally, R.I. Gen. Laws § 36-14-5(d) provides that a public official may not use his office for pecuniary gain, other than provided by law, for himself, a family member, employer, business associate, or a business that he 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 such circumstances, 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 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 (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). See also A.O. 2001-58; A.O. 2000-61. The Commission similarly concludes that the petitioner may participate and/or vote in the Warwick City Council’s consideration of budget issues, provided that he recuses from participation and/or vote on the school budget as a line item or on matters related to personnel issues affecting his spouse as a School Department employee. Notice of recusal should be filed with both the Warwick City Council 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:

2001-58
2000-63
2000-61
98-88
98-37
97-35
97-19
96-69
95-72
95-44
95-34
95-15

Keywords:

Budgets
Family: public employment