Advisory Opinion No.2008-19 Rhode Island Ethics Commission Advisory Opinion No.2008-19 Re: Steven Stycos QUESTION PRESENTED The petitioner, a Cranston School Committee (“School Committee”) member, a municipal elected position, requests an advisory opinion as to whether he is prohibited by the Code of Ethics from participating in discussion and voting on proposals coming before the School Committee concerning adult education services within the Cranston public schools, given that the petitioner is the Admissions and Volunteer Coordinator for Dorcas Place Adult and Family Literacy Center in Providence (“Dorcas Place”), a non-profit entity that also provides adult education services. RESPONSE The petitioner, a Cranston School Committee (“School Committee”) member, a municipal elected position, is not prohibited by the Code of Ethics from participating in discussion and voting on proposals coming before the School Committee concerning adult education services within the Cranston public schools, as any potential impact on the petitioner’s employer, Dorcas Place Adult and Family Literacy Center in Providence (“Dorcas Place”), a non-profit entity that also provides adult education services, is too remote and attenuated, given the petitioner’s representation that Dorcas Place is normally at maximum enrollment for these types of programs, that generally the regional demand for these type of adult educational services exceeds the supply, and that any financial impact on Dorcas Place as a result of the petitioner’s official actions is too speculative to be “reasonably foreseeable.” The petitioner has been a member of the Cranston School Committee for approximately seven years. He states that in the past, the Cranston public schools have provided adult educational services, some of which the Cranston School District has provided funding for out of its annual budget. The petitioner further represents that in his private employment, he works as the Admissions and Volunteer Coordinator for Dorcas Place Adult and Family Literacy Center in Providence. He states that Dorcas Place offers a range of adult education programs, including General Educational Development (“GED”) preparation and Pre-GED preparation, English as a Second Language (“ESL”) classes, and a variety of job training programs. The petitioner further states that the Cranston School District offers some of the same types of adult education programming through the Cranston public schools. As he serves in a supervisory capacity in his position at Dorcas Place, he is a member of a Program Team of Supervisors that meets approximately every two weeks to review enrollment numbers and goals for the different education programs and services provided; however, while this group does have input into actual program development and revision, the group does not control such development or revision. The petitioner states that recently, the issue of the Cranston School District’s funding of adult education services provided in the Cranston public schools has come under consideration before the School Committee. Specifically, the petitioner states that at a School Committee meeting on February 27, 2008, the School Committee voted to defund this budget item. The petitioner states that the Cranston School District had allocated $200,000 in funds in the budget for the 2008-2009 school-year for these programs; however, at the February 27, 2008 meeting, the School Committee voted to not provide any funds for these services. Prior to the voting on this item, the petitioner states that a citizen had suggested in an email that it would be a conflict of interest for the petitioner to participate in voting on the matter, and further suggested that his participation could be interpreted to mean that he was trying to funnel more students to adult education programs at Dorcas Place, the petitioner’s employer, by discontinuing funding for analogous programs in the Cranston public schools. As a result, the petitioner states that he abstained from voting on this budget item at the February 27 meeting. Further discussion of the budget item ensued, and the issue was raised as to whether the $200,000 in funds that had been allocated for adult education services was a direct allocation from school district funds, or if in fact some portion of the total allocation was funded through fees charged to students enrolled in the programs. Given the questions raised concerning the actual amount of the allocation, it is the petitioner’s representation that this is an ongoing budgetary matter that will not be finalized until June. The petitioner additionally states that Dorcas Place is located within approximately two miles from where adult education services are offered in the Cranston public schools and that it is possible that some students from Cranston would go to Dorcas Place if some of the services in Cranston are diminished or discontinued. However, the petitioner also represents that on the whole, the demand for adult educational services of this type invariably surpasses the supply of programs available in the area. Thus, the petitioner has requested this advisory opinion in order to determine if he is prohibited by the Code of Ethics from participating in further discussion and voting on proposals concerning adult education services in the Cranston public schools, given that his employer, Dorcas Place, also provides adult education services. Under the Code of Ethics, the petitioner, as a member of the Cranston School Committee, 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. See 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 virtue of his activity, to the official, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a). Regulation 36-14-7001 as to the “Reasonable foreseeability” of the existence of a conflict of interest states that “the probability must be greater than ‘conceivably’, but the Conflict of Interest need not be certain to occur.” He is also prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents. See R.I. Gen. Laws § 36-14-5(d). In this petitioner’s circumstances, the central question is whether it is reasonably foreseeable that his participation in the School Committee’s actions regarding the funding of adult education services in the Cranston public schools would have a direct financial impact upon his employer, Dorcas Place; if the petitioner has reason to believe that this is indeed the case, then he has an interest in substantial conflict with the proper discharge of his duties as a School Committee member and he must recuse from participation. See R.I. Gen. Laws § 36-14-6 and § 36-14-7. The petitioner concedes that if a portion of the adult educational programs are discontinued in the Cranston public schools, it is possible that some of those people that would otherwise have enrolled in programs in Cranston may end up instead participating in services at Dorcas Place, particularly, as the petitioner notes, given that Dorcas Place is geographically close to the Cranston public schools; however, the petitioner also contends that regionally the demand for the types of programming at issue in this instance (GED preparation, ESL, job skills training, etc.) generally exceeds the number of programs available. The petitioner also adds that there is some degree of constant fluctuation in the number of and types of adult educational services offered regionally due to the fact that many programs throughout the region are primarily grant-funded. In prior advisory opinions, the Commission has opined that public officials may not participate in official actions that would either confer a direct financial benefit on the petitioner’s own business or his employer, or which involve a competing business that is in reasonably close proximity to the business the official is employed by or has an interest in. See A.O. 2004-38 (opining that a member of the New Shoreham Town Council, who was privately employed by a restaurant holding a liquor license, was prohibited from participating in the Town Council’s review of his employer’s, and his employer’s direct competitor’s, liquor licenses); A.O. 2002-23 (opining that a Coastal Resource Management Council (CRMC) member may not participate in the CRMC’s consideration of matters involving Waites Wharf, given that such matters would likely have an impact on his private financial interests as the owner of another marina that was in close proximity); A.O.99-59 (opining that a member of the Board of Examination and Licensing of Telecommunications Systems Contractors, Technicians and Installers, who was also President of a telecommunications company, was prohibited by the Code from taking any action which would directly impact his business interests or that would prevent another entity from effectively competing with his company). Additionally, the Commission has previously opined that the kind of “divided loyalty” that may occur as the result of circumstances in which a public entity is “competing” financially with a private business can implicate provisions of the Code. See A.O. 2003-52 (cautioning the Providence Senior Assistant City Solicitor that if the City were to appear to be in competition with the petitioner’s private legal clients for federal funds or any other kind of relief, such divided loyalty would implicate §§ 36-14-5(a)-(d) and 7(a)). Based on the representations of the petitioner, pertinent provisions of the Code of Ethics, and prior advisory opinions, the petitioner is not prohibited by the Code of Ethics from participating in discussion and voting on proposals coming before the School Committee concerning adult education services within the Cranston public schools, as any potential impact on the petitioner’s employer, Dorcas Place, is too remote and attenuated, given the petitioner’s representation that Dorcas Place is normally at maximum enrollment for these types of programs, that generally the regional demand for these type of adult educational services exceeds the supply, and that any financial impact on Dorcas Place as a result of the petitioner’s official actions is too speculative to be “reasonably foreseeable.” However, if any of these conditions should change, the petitioner is encouraged to seek further guidance from this Commission. Code Citations : 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) Regulation 36-14-7001 Related Advisory Opinions : 2004-38 2003-52 2002-23 99-59 99-9 Keywords : Employer Recusal