Advisory Opinion No. 2003-61

Re: J. William W. Harsch, Esq.

QUESTION PRESENTED

The petitioners, the Town Solicitors for the Town of Tiverton, on behalf of the Tiverton Town Council, a municipal elected body, request an advisory opinion regarding whether and how the Town Council may proceed to determine if five members of the Council are entitled to be reimbursed by the Town for their individual, legal expenses incurred in challenging an effort to organize a recall election.(1)

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that five members of the Tiverton Town Council, municipal elected officials, are required to recuse from participation and vote in the Town Council's consideration of whether to reimburse themselves, or other similarly situated Council members, for their legal expenses incurred in challenging an effort to organize a recall. It is our further opinion that the two Town Council members not seeking reimbursement of legal expenses may participate and vote on the issue of reimbursement. The Commission declines to opine that the Rule of Necessity may be utilized to obtain a quorum on the issue, given the failure of the petitioners to determine and represent that the Town Council is the only tribunal or entity in the Town capable deciding the issues raised.

The petitioners represent that several months ago a group of Tiverton residents initiated a campaign to hold a recall election of five of the seven elected members of the Tiverton Town Council. The Tiverton Town Solicitors, apparently on behalf of the Town, filed a complaint with the Rhode Island Board of Elections contesting the validity of the recall effort. It also appears that the Town, through its Solicitors, challenged the validity of the recall petition with the Tiverton Board of Canvassers. The petitioners represent that each of the five Council members named in the recall petition engaged independent legal counsel with respect to recall issues. The petitioners represent that the effort to organize a recall election ultimately failed when the Tiverton Board of Canvassers determined that the recall petition was invalid on its face for combining the names of all five Town Council members in a single petition, as opposed to using five individualized petitions.

The five Town Council members who were the subjects of the recall effort have now requested that the Town of Tiverton reimburse them for each of their individual legal expenses in challenging the recall effort. The petitioners represent that the issue of whether the Town "can and/or should" reimburse the five Town Council members has come before the Town Council. The petitioners understand that each individual Council member will be required to recuse from participating in the Council's decision as to reimbursing him/herself. If all five of the interested members recuse, however, the two remaining Council members will not constitute a quorum capable of deciding the issue. Given that understanding, the petitioners ask for guidance as to whether each of the five interested members may participate in the decision as to the four other legal bills, while recusing on only his/her own bill. Alternatively, the petitioners ask whether the Council may utilize the Rule of Necessity to obtain a quorum on the issue. Finally, the petitioners represent that the recall effort had been "strongly supported" by the two other Town Council members who were not named in the recall petition. The petitioners ask whether, given such support, these two Council members are also required to recuse from the Council's decision to reimburse the other five members.

Under the Code of Ethics, a public official may not participate in any matter in which he/she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his/her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if a public official has reason to believe or expect that he/she or any family member or business associate, or any business by which he/she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his/her official activity. R.I. Gen. Laws § 36-14-7(a). More specifically, a public official is prohibited from using his/her public position to obtain financial gain, other than that provided by law, for himself/herself, a family member, business associate, or any business by which he/she is employed or represents. R.I. Gen. Laws § 36-14-5(d).

As an initial matter, it is clear that no individual Council member may participate in the Council's consideration of whether the Town can or should reimburse his or her own, individual legal expenses. To do so would violate both sections 5(a) and 5(d) of the Code, which prohibit a public official from taking official action and using his or her public office to derive financial gain.

Applying these same sections, it is equally clear that the two Council members who were not subject to the recall petition, and who are not seeking reimbursement of legal bills, are not prohibited by the Code from participating and voting on the issue. The participation of these two members is not likely to result in a financial impact to themselves, their families, their employers or their business associates. The mere fact that these two Council members "strongly supported" the recall effort, or may have even signed the recall petition, does not create a conflict of interest requiring their recusal from issues relating to reimbursement of other members' legal bills. The Commission has previously stated that where "no familial or private business relationship exists among the parties . . . shared political affiliations and objectives [or likewise, one presumes, divergent ones], in and of themselves, are not relevant for purposes of the Code." A.O. 99-96 (comment added)(Narragansett Town Councilors permitted to participate in Council’s decision to reimburse former Council member for legal fees, notwithstanding fact that petitioning former Council member supported current Council members' candidacies and distributed campaign literature for them).

Having determined that each of the five affected Council members must recuse from the Council's consideration of his or her own legal bill, the petitioners note that the Council will be unable to achieve a quorum if all five members recuse on the issue as to each affected member. Given this quorum problem, the petitioners ask whether it would be sufficient if each legal bill were considered separately. In doing so, each of the five members could recuse in turn as to the Council's consideration of only his or her own legal bill, while participating in the Council's decision to reimburse the other four similarly situated members.

To address this issue, the Commission first considers precisely what issue(s) will be before the Council. In their letter requesting an advisory opinion, the petitioners phrase the question as "whether the Town can and/or should indemnify the five councilors . . . ." (emphasis added). This language indicates that there are properly two issues before the Council as to each bill. First, the issue as to whether the Council can indemnify a member appears to relate to whether each member's personal legal bill, attributable to challenging his or her recall from office, is a properly reimbursable Town expense, or whether it is more properly an election expense that can not be passed on to the Tiverton taxpayers. Assuming the Council determines that it can allow such reimbursement, it then must decide whether the Town should allow it. The Commission offers no opinion as to correct answers to these questions, but considers the questions only insofar as their resolution by the Town Council requires recusals under the Code of Ethics.

It seems likely that the Council's determination of these issues as to each of the legal bills, particularly as to whether the Town can reimburse these expenses, is common to each of the five members seeking reimbursement. One expects that the Council's decision on these common issues as to one member will be applied consistently to each of the other four similarly situated members. Furthermore, this strategy of separating the five legal bills into distinct agenda items so that only one recusal is required per bill, rather than handling them as a single item requiring the recusal of all five interested members, has the appearance of being calculated solely to avoid the requirements of the Code of Ethics. Such a strategy would not be consistent with the public's high expectations of public officials described by the laws and Constitution of the State of Rhode Island, namely to "adhere to the highest standards of ethical conduct, respect the public trust and the rights of all persons, be open, accountable and responsive, avoid the appearance of impropriety, and not use their position for private gain or advantage." R.I. Const., art. III, sec. 7; R.I. Gen. Laws § 36-14-1.

Accordingly, we find that an individual Council member's participation and vote on these common issues, even as applied to another Council member's legal bill, is an official action that is likely to result in a financial benefit or detriment to the voting member when the issue of his or her own legal bill is raised. See e.g., A.O. 97-128 (Warwick City Councilors may not accept expense reimbursement payments of $100 per month because they directly participated in the discussions relating to an increase in benefits to themselves, even though the funding for the expense reimbursement resulted ultimately from the Mayor's veto and not from an affirmative vote of the City Council); A.O. 95-52 (members of the Little Compton Town Council should not participate in discussions or votes regarding whether any other Council member may receive stipend of up to $5000 for administrative duties carried out on behalf of Town Council); General Commission Advisory No. 6 (advising that a probable violation of the Code of Ethics will occur if a public official takes any action with regard to salary or other benefits of employment which will benefit him or her directly).

Given the fact that the Code of Ethics requires five of the seven Town Council members to recuse from participating in the issue of the Town's reimbursement of legal expenses relating to the recall campaign, the petitioners ask whether the Council may utilize the Rule of Necessity to obtain a quorum. This Commission has recognized a “Rule of Necessity” exception in situations where recusals would inhibit governmental processes, such as where the majority of a public body’s members must recuse themselves and a resulting failure of a quorum renders the entity unable to act. See, e.g., A.O. 98-43 (Rule of Necessity may be utilized by East Greenwich Town Council to obtain quorum on issue of subdivision of American Legion property, where two Council members must recuse based upon American Legion membership); A.O. 96-65 (where majority of members of the Workers' Compensation Court Medical Advisory Board must recuse from consideration of a preferred provider network, Rule of Necessity may be utilized to establish a quorum); A.O. 93-31 (Richmond Town Council may utilize Rule of Necessity to vote on acceptance of public streets in Valley Lodge Estates, where three of the five Council members own real estate in the area); and A.O. 92-1 (where three members of Smithfield Zoning Board of Review were required to recuse from the consideration of an Elks Lodge petition, thereby creating the lack of a necessary quorum, the Rule of Necessity could be utilized).

Inherent in the invocation of the Rule of Necessity, however, is the requirement that the public body applying it must be the only tribunal in which relief can be had. See Poirier v. Martineau, 86 R.I. 473, 477-78, 136 A.2d 814 (1957). Clearly, if the issues relating to Tiverton's reimbursement of the Council members' legal bills can legally and properly be decided by another Tiverton tribunal or entity, then there is no "necessity" for the Council to be excused from the clear recusal requirements of the Code of Ethics. In the context of an advisory opinion, it is not for the Commission to determine the structure of an individual municipal government or the jurisdiction of its individual departments. The Commission's advisory opinions are not investigatory in nature, but are based upon the representations made by the petitioners. The petitioners, the Tiverton Town Solicitors, state that although they have considered whether the Town Council is the only Tiverton tribunal or entity capable of ordering the reimbursement of these legal expenses, they have to date been unable to come to a conclusion on the issue. In the absence of this determination and representation by the petitioners/Solicitors, and under these circumstances, the Commission cannot opine that the Tiverton Town Council's utilization of the Rule of Necessity is justified.

In summary, the five Town Council members seeking reimbursement from the Town for their legal bills incurred in challenging a recall election may not participate or vote in the Town Council's consideration of such reimbursement as to themselves or as to any of the other similarly situated Council members. The two Town Council members not seeking reimbursement of legal expenses may participate and vote. The Commission declines to opine that the Rule of Necessity may be utilized to obtain a quorum on the issue, given the failure of the petitioners to determine and represent that the Town Council is the only tribunal or entity in the Town capable of deciding the issues raised. The petitioners are free to request further guidance from the Commission if additional information becomes available.

Code Citations:

36-14-1

36-14-5(a)

36-14-5(d)

36-14-6

36-14-7(a)

R.I. Const., art. III, sec. 7

Related Advisory Opinions:

GCA 6

99-96

98-43

97-128

96-65

95-52

93-31

92-1

Keywords:

Recusal

Rule of Necessity

Compensation/Reimbursement

(1) The petitioners have also asked the Commission for an advisory opinion on an unrelated issue concerning whether a law partner of the Tiverton Municipal Court Judge should be disqualified before the Rhode Island Board of Elections from representing the Tiverton residents' group that initiated the recall campaign. Pursuant to Commission Regulation 1024, an advisory opinion may be sought from the Commission only by a person subject to the Code of Ethics, and then only relative to the provisions of the Code which may affect him or her. Here, the disqualified law partner of the Tiverton Municipal Court Judge has not requested an advisory opinion, and furthermore he is a private attorney not subject to the Code of Ethics. For these reasons, the Ethics Commission is an improper venue for resolution of this issue.