Advisory Opinion No. 2006-11 Advisory Opinion No. 2006-11 Re: Scott T. Spear, Esq. QUESTION PRESENTED The petitioner, in his capacity as legal counsel for the East Greenwich Fire District Board of Commissioners, a municipal elected body, requests an advisory opinion as to whether the Board of Commissioners may vote to reimburse two (2) of its members for lost income incurred due to their appearance in court on behalf of the Fire District as named defendants in a civil action brought by a former Fire District employee. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the East Greenwich Fire District Board of Commissioners may vote to authorize reimbursement to two of its members for lost income incurred due to their appearance in court to testify in their official capacity as Commissioners provided that the two members recuse themselves from participation and vote on the matter. The petitioner advises that he is legal counsel for the East Greenwich Fire District Board of Commissioners (“the Board”). He informs that the Fire District is a corporation enacted by the Rhode Island General Assembly and it is governed by five (5) Fire Commissioners who are elected by qualified voters in the Town of East Greenwich. The petitioner informs that recently two (2) Commissioners were required to appear in court to testify on behalf of the Board and to assist in its defense in a matter involving a former Fire District employee. The petitioner represents that in connection with said court appearance, each Commissioner lost nine (9) days of income from their respective employers. The petitioner represents that the Commissioners involved would not participate or vote concerning said reimbursement and would recuse themselves pursuant to the Code of Ethics. 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 neither Commissioner may participate in the Board’s consideration of whether it can or should reimburse each Commissioner for loss of personal income incurred due to a court appearance on behalf of the Board. 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 three (3) remaining Commissioners who were not required to appear in court, and who are not seeking reimbursement of lost wages, are not prohibited by the Code from participating and voting on the issue. The participation of these three members is not likely to result in a financial impact to themselves, their families, their employers or their business associates. See A.O. 2003-61 (finding that five members of the Tiverton Town Council are required to recuse from participation and vote in the Town Council’s consideration of whether to reimburse themselves for legal expenses, however, the two remaining town council member are permitted to participate and vote on the reimbursement issue since they were not seeking said reimbursement). Code Citations: 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) Related Advisory Opinions: 2003-61 Keywords: Recusal Compensation/Reimbursement