Advisory Opinion No. 2006-28 Advisory Opinion No. 2006-28 Re: Adrienne G. Southgate A. QUESTION PRESENTED The petitioner, the Deputy Solicitor for the City of Providence, requests an advisory opinion as to whether the members of the Providence City Council, municipal elected positions, may participate and vote on a proposed salary increase for the City Council which would take effect in January 2007. B. SUMMARY It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the members of the Providence City Council, municipal elected positions, who are seeking re-election to office from participating and voting on a proposed salary increase for the City Council which would take effect in January 2007. Given that the deadline for filing candidacy declarations has expired, the affected City Council members are cognizant of the opposition, if any, that they face in the next election. Therefore, it is reasonably foreseeable that by participating and voting on the proposed salary increase the affected members would derive a financial benefit. C. DISCUSSION 1. Facts The petitioner, the Deputy Solicitor for the City of Providence, advises that the City Council Majority Leader and Director of the Department of Administration met on June 1, 2006 to discuss an initiative to increase the salaries of both the Mayor and the members of the City Council pursuant to the provisions of the Providence Home Rule Charter.[1] Section 415 of the Charter provides as follows, in pertinent part: (a) The salaries of the mayor, the members of the city council, all department heads, and of the members of all boards and commissions entitled to compensation, shall be set by the city council by ordinance; provided, however, that the salary of the mayor and the members of the city council shall not be increased or diminished six (6) months prior to the beginning of the term of office of mayor or city council, and that any such ordinance shall be based on recommendations of the salary review commission as provided for in this section. (b) There shall be a salary review commission of five (5) members appointed by the mayor, with council approval, from among persons who hold no city elective or appointive office, nor are employed by the city. [***] (c) The salary commission shall, no more often than every two (2) years, recommend to the mayor salary levels for the offices listed in subsection (a) of this section. In acting on said recommendations, the mayor shall approve, reject or reduce the same, or any of them, and forward his or her recommendations to the city council. In action upon the recommendations of the mayor, the city council shall approve, reject or reduce the same, or any of them. No salaries for the said offices shall be set, except pursuant to commission recommendation as aforesaid. (Emphasis added). The petitioner informs that, initially, an independent consultant researches the prevailing salary levels in similarly situated Northeast municipalities and reports on same to the Salary Review Commission (SRC). The SRC makes its recommendation to the Mayor, who must act to approve, reject or reduce the proposed salary levels. The Mayor then submits his recommend-ation to the City Council, which assigns the matter to the Finance Committee. Prior to taking final action on the proposed salary levels, the City Council must hold a public hearing, which shall be held not less than ten (10) days following notice published in a newspaper circulated generally in the City of Providence, in accordance with Section 411(a) of the Charter. The petitioner represents that the SRC, which had not meet during the current term, was not scheduled to meet until June 7th to consider the independent consultant’s study relating to mayoral and city council salary levels. She relates that the Mayor indicated a willingness to immediately transmit the SRC recommendations to the City Council Finance Committee. She indicates that the Finance Committee could receive the recommendations on June 8th and publish the required public notice for hearing. Due to other notice requirements, she states that the Council would need to conduct two Special Meetings on June 26th and June 28th to consider the issue. She further informs that, due to the six-month limitation imposed by section 415(a) of the Charter, the Council cannot vote on proposed salary increases for the next term after July 1, 2006. Although the Charter permits the City Council to vote for salary increases thereafter, the increase would have to take effect in the 2011 term of office, based upon guidance provided by the Ethics Commission to the City of Pawtucket in Advisory Opinion 1996-21. The petitioner further advises that the City Council has not had a pay increase since 1998. 2.Analysis Under the Code of Ethics, a public official may not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction which is in substantial conflict with the proper discharge of his or her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the official has reason to believe or expect that he or she or any family member, business associate, or any business by which he or she is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. R.I. Gen. Laws § 36-14-7(a). A public official has reason to believe or expect that a conflict of interest exists when it is “reasonably foreseeable.” The probability must be greater than “conceivably,” but the conflict need not be certain to occur. Regulation 6001. Further, a public official may not use his or her position or confidential information received through said position to obtain financial gain, other than that provided by law, for him or herself, a family member, business associate, or any business by which he or she is employed or represents. R.I. Gen. Laws § 36-14-5(d). In General Advisory Opinion No. 6 (GCA 6), issued in April 1989, the Commission provided guidance on salary raises for public officials. The Commission concluded that a public official who takes action on salary or other compensation issues benefits himself or herself directly and a probable violation of the Code of Ethics occurs. A violation also occurs when an elected board’s members, who ran for re-election, vote after the election for a salary increase but before new members are sworn in. A direct benefit also occurs for those members seeking re-election unopposed when votes are taken after candidacy declarations have been filed, as any such member would be certain that the salary increase would inure to him or her. The Commission referred specifically to Celona v. R.I. Ethics Commission, 544 A.2d 582, wherein the Court stated: Furthermore, there is no language in the Â… statute that limits violations to circumstances where a public official renders a decision that results in financial gain. Rather Â… a conflict exists if the public official has reason to believe or expect that he [or she] *** will derive a direct monetary gain *** by reason of his [or her] official activity. 544 A.2d 582 at 586. In Advisory Opinion 1996-21, which is referenced by the instant petitioner, the Commission concluded that the Pawtucket City Council and Mayor may vote on salary increases taking effect in a subsequent term, provided that the vote is taken prior to the filing of candidacy declarations for the next election. The Commission’s rationale was that during the period before candidacy declarations are filed the public official may not know if he or she will seek re-election or if another candidate may file a declaration for his or her seat. Therefore, the public official could not reasonably expect to receive a financial gain by reason of his or her action and no violation of the Code would result. Where recipients of future benefits are unknown at the time of discussion and voting, there is no risk of a violation of the Code of Ethics. See A.O. 93-82; A.O. 83-69 (Portsmouth Water and Fire District Board members may have pay raises benefiting Board members take effect far enough into the future so that actual beneficiaries of compensation or increases are not certain to be the Board members so voting). Here, the City of Providence’s deadline for filing candidacy declarations for the November 2006 election has expired. Therefore, the incumbent candidates are cognizant of the opposition, if any, that they face in the next election. Based upon this knowledge, it is reasonably foreseeable that by voting on the proposed salary increases, the Council members who are unopposed will derive a direct financial benefit. Clearly, City Council members who do not face opposition in the November 2006 election have a substantial conflict of interest with respect to their official duties if they participate and vote on the proposed salary increase and, therefore, must recuse from taking any official action. See R.I. Gen. Laws §§ 36-14-5(a) and 5(d); Commission Regulation 36-14-6001. Further, the remaining incumbent candidates are now aware of their opposition and have the ability to measure the likelihood of their success in retaining their positions on the City Council. Those who face inexperienced opponents in the upcoming election, or other non-viable candidates, may reasonably conclude that they will derive a financial benefit by taking official action on the proposed salary increase. Although the individual Council members do not know with certainty that they will retain their public office, the probability of their re-election is greater than “conceivably.” As such, incumbent Council members who face opposition in the election are likewise prohibited from participating in the City Council’s consideration of a proposed salary increase that would take effect in January 2007. See R.I. Gen. Laws §§ 36-14-5(a) and 5(d); Regulation 36-14-6001. Had the deadline for filing candidacy declarations not yet expired, the affected City Council members could have participated in the Council’s consideration of this matter since they would not know, at the time of their official action, whether or not it was reasonably foreseeable that they would financially benefit by their action. Given that the deadline has expired, all City Council members seeking re-election must recuse from participation and vote if the City Council considers a proposed salary increase to take effect in the January 2007 term. Notices of recusal must be filed with the Providence City Council and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Finally, the petitioner notes that the City of Providence is faced with additional constraints, imposed by provisions of the Home Rule Charter, with respect to the procedures by which salary increases may be considered and the limited time frames within which action may be taken. However, the Commission cannot opine as to the City Council’s ability to take action on proposed salary increases outside of the procedures delineated by the Charter and can only provide guidance as to whether the provisions of the Code of Ethics are implicated by reason of such action. Code Citations : 36-14-5(a) 36-14-5(d) 36-14-7(a) 36-14-6 36-14-6001 Related Advisory Opinions : 2002-29 2000-6 97-130 97-128 96-21 95-52 93-82 83-69 GCA 6 Related Case Law : Celona v. R.I. Ethics Commission, 544 A.2d 582 (R.I. 1988) Keywords : Compensation Financial Interest [1] Although not addressed in the petitioner’s request, it has been reported in various media outlets that the Mayor is not seeking any increase in the level of mayoral compensation.