Advisory Opinion No. 2009-4 Rhode Island Ethics Commission Advisory Opinion No. 2009-4 Re: Dwight T. Farrar QUESTION PRESENTED: The Petitioner, a member of the Scituate Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics restricts his participation in Town Council and Budget Committee hearings and meetings relative to the school and/or town budget, given that his spouse is employed as a teacher in the Scituate school system. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a member of the Scituate Town Council, a municipal elected position, from participating in Town Council and Budget Committee hearings and meetings that relate to approving or rejecting the entire school and/or town budget as a whole, notwithstanding the fact that the petitioner's spouse is employed as a teacher in the Scituate school system. The petitioner is a member of the Scituate Town Council ("Town Council"). He represents that the members of the Town Council, along with the Town Clerk and Town Treasurer, act as the Town's Budget Committee. The petitioner states that his wife is an elementary school teacher in Scituate. Given his wife's employment by the school department, the petitioner asks whether he can participate in the separate Town Council and Budget Committee reviews of the overall school and town budget. The petitioner describes the town's budgetary process as follows: Each year the school superintendent prepares a proposed school budget that is submitted to the School Committee. Upon its approval, the School Committee then presents the school budget to the Budget Committee. The Budget Committee may approve the bottom line figure requested by the School Committee, or it may remand the budget to the School Committee with instructions to reduce the total amount requested. The petitioner states that the Budget Committee has no authority to alter any proposed line items, such as teachers' salaries or benefits; that decision-making is left to the School Committee. Once the school budget is approved, it is absorbed into the entire town budget that is presented by the Budget Committee to the Town Council. The Town Council then has an opportunity to review the entire budget, which now includes the school budget. The petitioner states that the Town Council, like the Budget Committee, has no authority to alter or amend any of the school budget line items. The Town Council approves a final budget that is presented to the residents of Scituate at a financial town meeting, where the entire budget can be approved by a majority vote of those in attendance. Commission Regulation 36-14-5004 specifically addresses the question raised by the petitioner. It reads, in pertinent part: (3) Participation in Budgets. (A) General Prohibition. No person subject to the Code of Ethics shall participate in discussion or decision-making relative to a budgetary line item that would address or affect the employment, compensation or benefits of any person within his or her family or a household member. (B) Specific Line Items. Notwithstanding the prohibition set forth in subsection 3(A), a person subject to the Code of Ethics may, only in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion, participate in discussion or decision-making relative to a budgetary line item that addresses or affects the employment, compensation or benefits of any person within his or her family or a household member as a member of a significant and definable class of persons, and not individually or to any greater extent than any other similarly situated member of the class. (C) Vote on Entire Budget. Notwithstanding the prohibition set forth in subsection 3(A), a person subject to the Code of Ethics may participate in discussion or decision-making relative to approving or rejecting the entire budget as a whole, provided that the person within his or her family or household member is impacted by the entire budget as a member of a significant and definable class of persons, and not individually or to any greater extent than any other similarly situated member of the class. Commission Regulation 36-14-5004(a)(3). Here, the petitioner has expressly represented that his participation in the separate Budget Committee and Town Council reviews of the school and/or town budget will not involve any discussion of particular line items. Rather, the role of both entities is to approve or reject the entire budget as a whole. To the extent that such decision-making affects his spouse, it is an indirect impact shared by all teachers or, more globally, all school department employees. The petitioner's spouse is not singled out individually, and will be impacted by the decisions of the Town Council and Budget Committee to no greater or lesser extent than any other similarly situated school employee. See Regulation 36-14-5004(b)(3)(C). For all of the above reasons, we are of the opinion that the Code of Ethics does not prohibit the petitioner from participating in Town Council and Budget Committee hearings and meetings relative to the school and/or town budget. This is consistent with our past opinions on similar questions presented. See A.O. 2005-17 (Portsmouth Town Council member may vote on Town Budget notwithstanding that his spouse was employed as a teacher in the Town); A.O. 2002-44 (Warwick City Councilor, whose spouse was employed by the Warwick School Department, may participate in and/or vote on the Town budget even if it includes matters related to school budgets and school issues generally, provided that he did not participate in and/or vote on specific matters related to personnel issues affecting his spouse). However, although the petitioner is permitted to participate in the overall decisions to approve or reject the school and/or town budget, the Commission is aware that a general discussion can quickly devolve into a more narrow review of specific items. The petitioner must be vigilant in identifying such instances where a general conversation begins to focus on employee issues that are likely to financially impact his spouse. In such circumstances, the petitioner must recuse from further participation in accordance with R.I. Gen. Laws § 36-14-6 or, if possible, seek further guidance from the Ethics Commission. Code Citations : Regulation 36-14-5004 Related Advisory Opinions : A.O. 2007-30 A.O. 2005-17 A.O. 2002-44 Keywords : Budgets Family: Public Employment Nepotism