Advisory Opinion No. 2003-65

Re: William G. Day

QUESTION PRESENTED

The petitioner, a Chariho School Committee member, a municipal elected position, requests an advisory opinion as to whether he may officiate sporting events involving Chariho schools.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Chariho School Committee member, a municipal elected position, may officiate sporting events involving the Chariho schools. The Code of Ethics requires his recusal from participation and/or vote in the School Committee’s consideration of any matters relating to the hiring or remuneration of sports officials, and in matters relating to the Chariho Director of Athletics who selects such officials.

The petitioner advises that he is a member of the Chariho School Committee. He represents that for 10 to 15 years prior to his election to the School Committee he has umpired and refereed sporting events for the Chariho schools in return for a stipend of approximately $40 per game. The selection of game officials is made by the Chariho Director of Athletics from a list of between six and eight persons, and the petitioner represents that officials are treated as independent contractors. The petitioner advises that the Chariho School Committee is in no way involved in the hiring of game officials, although the Committee is responsible for the hiring of the Director of Athletics based upon the recommendation of the School Superintendent. The petitioner states that should any matter come before the School Committee involving game officials, he will recuse from participation and vote. Finally, the petitioner advises that going forward he will waive the stipends normally paid for officiating games. Given these representations, the petitioner asks whether the Code of Ethics prohibits his acting as a game official for the Chariho schools.

Under the Code of Ethics, a public official 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. R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(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 his official activity, to the official, a family member, or a business associate. R.I. Gen. Laws § 36-14-7(a). Section 5(b) of the Code prohibits a public official from accepting other employment that will either impair his independence of judgment as to his official duties or employment or require him to disclose confidential information acquired by him in the course of his official duties. A public official may not use his public position to obtain financial gain, other than that provided by law, for himself, his family or business associates. 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.

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 his involvement in officiating sporting events for the Chariho schools. He is not an employee of the School Department, but rather receives a stipend for his services through the athletic department. Further, the petitioner represents that he will henceforth waive his receipt of the stipend. His 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 his continued involvement in these activities given his status as a member of the School Committee, it does limit the scope of his activities.

In his capacity as a School Committee member, the petitioner must recuse from participation and/or vote in the School Committee’s consideration of matters, if any, involving the schools' sports officials. While he may participate in a review of the School Department’s budget as a whole, he may not participate in the consideration of any specific budgetary line items that affect the sports officials. See A.O. 95-72. Furthermore, the petitioner advises that the Chariho Athletic Director selects sports officials for individual games from a list of approximately six to eight officials. Here, although the Athletic Director rather than the School Committee selects sports officials for individual games, the petitioner advises that the School Committee is ultimately responsible for the selection and hiring of the Athletic Director. Accordingly, while the petitioner remains on the list of eligible sports officials, he should not participate in the School Committee's consideration of issues relating to the Chariho Director of Athletics. Notice of recusal should be filed both with the Ethics Commission and the Chariho School Committee in accordance with R.I. Gen. Laws § 36-14-6.

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, the petitioner’s provision of officiating services must be disclosed in accordance with Section 5(h).

Finally Regulation 5006 prohibits a public official from accepting any appointment or election by the body of which he is a member to any position with carries with it financial remuneration. Because the School Committee selects the Athletic Director, who in turn selects the sports officials, the petitioner's continued receipt of financial remuneration for his officiating services would violate the spirit if not the letter of Regulation 5006. Given the petitioner's waiver of remuneration, however, the Commission concludes that this provision of the Code of Ethics is not implicated. 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. The Commission cautions the petitioner to be particularly vigilant as to the matters in which he participates as a School Committee member and urges him to seek further guidance and clarification if the scope of his 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:

Dual public roles

Revolving door