Advisory Opinion No. 2003-9

Re: Joseph A. Terranova

QUESTION PRESENTED

The petitioner, a member of the Westerly Finance Board, a municipal appointed 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 Westerly School Department as a teacher.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Westerly Finance Board member, a municipal appointed position, may participate and/or vote on budget issues, provided that he does not participate and/or vote on the School Department’s budget as a line item or on personnel matters related to his spouse as a School Department teacher.

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). However, an official will not have an interest which is in substantial conflict with his public duties if any benefit accrues to the official or a member of his family, "as a member of a business, profession, occupation or group, or of any significant and definable class of persons within the business, profession, occupation or group, to no greater extent than any other similarly situated member of the business, profession, occupation or group, or the significant and definable class of persons within the business, profession, occupation or group." See R.I. Gen. Laws § 36-14-7(b). 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 petitioner represents that he was recently appointed to serve on the Westerly Finance Board. Additionally, he states that the Westerly School Department employs his spouse as a full-time elementary school teacher. First, the petitioner seeks this advisory opinion to determine whether the Code of Ethics prohibits him from serving as either a member or as the Chairman of the Westerly Finance Board. Second, whether he may participate and/or vote on budget issues given that his wife is employed by the School Department as a teacher. Finally, the petitioner seeks guidance as to whether he may participate on budgetary issues if they do not affect his wife to any greater or lesser extent than any other teacher in the Westerly School Department.

The Commission previously has concluded that individuals may serve as members of a school committee within a municipality while that municipality’s school department employs them or their family members. Additionally, the Commission has held that individuals may serve on a city or town council while being simultaneously employed by the school department. See e.g., A.O. 2000-63; A.O. 2000-61; and A.O. 95-44. As such, no violation of the Code of Ethics will occur if the petitioner serves as either a member or as the Chairman of the Westerly Finance Board while the School Department employs his spouse.

While the Code does not prohibit the petitioner’s service on the Westerly Finance Board, the Code does regulate those matters in which he may or may not participate. The Commission has opined that town council members with family members in their town’s school department 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 A.O. 98-88; R.I. Gen. Laws § 36-14-5(a). However, while a public official in the petitioner’s circumstances may participate and/or vote on the School Department’s budget as a whole, he must recuse from participation and/or vote on specific line items relating to the school department or to personnel matters affecting his spouse. See A.O. 2002-44 (opining that a Warwick City Councilor 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 teacher’s aide employed by the Warwick School Department).

In this matter, the Commission similarly concludes that the petitioner may participate and/or vote in the Westerly Finance Board’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 Westerly Finance Board and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

Finally, the petitioner seeks guidance as to whether he may participate on budget issues if they do not affect his wife to any greater or lesser extent than any other teacher in the Westerly School Department. Under the Code of Ethics, an official will not have an interest in substantial conflict with his public duties if any benefit accrues to him or any person within his family “as a member of a business, profession, occupation or group, or of any significant and definable class of persons within the business, profession, occupation or group, to no greater extent than any other similarly situated member of the business, profession, occupation or group, or the significant and definable class of persons within the business, profession, occupation or group.” See R.I. Gen. Laws § 36-14-7(b). Whether this exception applies to the petitioner involves fact specific, matter by matter determinations. Here, the Commission is without sufficient facts to make such a determination. As such, the petitioner is advised that he should seek further guidance from the Ethics Commission, providing relevant details, before such matters come before the Westerly Finance Board.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-6

36-14-7(a)

36-14-7(b)

Related Advisory Opinions:

2002-44

2001-58

2000-63

2000-61

98-88

98-44

98-37

97-35

97-19

96-69

95-72

95-44

95-34

95-15

Keywords:

Budgets

Family: public employment