Advisory Opinion No. 2003-31

Re: Steven A. Flori

QUESTION PRESENTED

The petitioner, the Executive Director of the Rhode Island Governor's Commission on the Deaf and Hard of Hearing, a state employee position, requests an advisory opinion regarding his ability to serve on the Board of Trustees of the Rhode Island School for the Deaf.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Executive Director of the Rhode Island Governor's Commission on the Deaf and Hard of Hearing, a state employee position, may serve on the Board of Trustees of the Rhode Island School for the Deaf.

The petitioner is the Executive Director of the Rhode Island Governor's Commission on the Deaf and Hard of Hearing (CDHH). The CDHH is a coordinating and advocating body, acting on behalf of the special concerns of deaf and hearing impaired persons in Rhode Island. Its primary duties are to (1) bring about greater cooperation and coordination among agencies and organizations now servicing or having the potential to serve the deaf and hearing impaired; (2) promote greater accessibility to services for the deaf and hearing impaired; (3) conduct an ongoing needs assessment; (4) promote increased awareness and provide information and referrals; (5) advocate for the enactment of legislation that would assist the needs of individuals who are deaf and hearing impaired; (6) administer a sign language interpreter referral service; (7) take necessary action to improve the quality of life for deaf and hearing impaired individuals living in Rhode Island; and (8) develop a statewide coordinating council that will coordinate the implementation of the comprehensive statewide strategic plan for children in Rhode Island who are deaf or have hearing loss.

The petitioner represents that he has been asked to apply to serve on the Board of Trustees of the Rhode Island School for the Deaf. Chapter 16-26 of the Rhode Island General Laws provides the following information regarding the Rhode Island School for the Deaf. The Rhode Island School for the Deaf is operated as a local education agency, under the authority and supervision of the Rhode Island Board of Regents for Elementary and Secondary Education. The school is governed by a board of trustees, who by statute are given the powers and duties of a school committee. The trustees are given broad policy making authority for the operation of the school, including the identification of the needs of deaf and hard of hearing children in the state, the development of educational policies, the appointment of a director of the school, and the development of staffing policies. In addition, the trustees approve a budget prepared by the school's executive director, then transmit the budget to the Board of Regents for incorporation into the Governor's budget request.

The petitioner asks whether his acceptance of a position on the Board of Trustees of the Rhode Island School for the Deaf would present a conflict of interest under the Code of Ethics, given his position as the Executive Director of the CDHH. The petitioner also notes that his fiancée is currently a substitute teacher at the School for the Deaf, and asks whether such employment or possible future employment as a full time teacher would prohibit petitioner from acting as a member of the school's Board of Trustees.

Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). An official will have an interest in substantial conflict with his official duties if it is reasonably foreseeable that a "direct monetary gain" or a "direct monetary loss" will accrue, by reason of his official activity, to the official, a family member, a business associate, an employer or any business which the public official represents. R.I. Gen. Laws § 36-14-7(a); Commission Regulation 36-14-6001. Furthermore, a public official may not accept other employment which will either impair his independence of judgement as to his official duties or employment or require him or her to disclose confidential information. R.I. Gen. Laws § 36-14-5(b). Finally, a public official may not use his or her public office to obtain financial gain, other than that provided by law, for himself or for any business associate. R.I. Gen. Laws § 36-14-5(d).

Here, the petitioner represents that the CDHH does not have fiscal or jurisdictional control over the School for the Deaf, and further represents that any official action he takes as Executive Director for the CDHH does not have a financial impact upon the School. Assuming this to be true for the purposes of this advisory opinion, the petitioner would not have the ability to use his position at CDHH to confer a financial benefit upon the School for the Deaf. Furthermore, even if his official action at one of these public bodies did financially impact the other, such action is not prohibited under the Code of Ethics because the Code of Ethics does not consider any relationship between a public official and a public body to be that of "business associates." See A.O. 2002-63 (relationship between petitioner and RIDEM as parties to real estate transaction not that of "business associates" under the Code); A.O. 2002-55 (concluding, inter alia, that the Town of Richmond is not a “business”); A.O. 97-17 (finding, inter alia, that the definition of "business" does not extend to public entities such as the Warren Town Council or the Bristol County Water Authority). Finally, it appears that the goals and missions of these two public bodies, the CDHH and the School for the Deaf, are sufficiently parallel so that any official action intended to further the mission of one of these bodies will have a corresponding benefit to the other.

For these reasons, the Code of Ethics does not prohibit the petitioner from accepting a position on the Board of Trustees of the Rhode Island School for the Deaf by reason of his position as the Executive Director of the CDHH.

As to the petitioner's second question, it must be noted that the Code of Ethics does not consider a public official's fiancée, as opposed to his spouse, to be a "family member." Accordingly, official action that may financially impact one's fiancée is not prohibited by the Code. If and when the petitioner becomes married to a school employee, the Code will not prohibit the petitioner's service on the School's Board of Trustees, but will require that he not participate in any Board matter that might financially impact his spouse. As these issues become less hypothetical, the petitioner is encouraged to seek further advice from the Commission concerning his ability to participate in specific Board of Trustee matters.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

2002-63

2002-65

2000-5

97-17

96-90

Keywords:

business associate

nepotism