Advisory Opinion No. 2009-25 Rhode Island Ethics Commission Advisory Opinion No. 2009-25 Re: Joseph G. Miller, Esq. QUESTION PRESENTED The Petitioner, Joseph G. Miller, Esq., on behalf of the Health Services Council and its Chair, Robert J. Quigley, DC, requests an advisory opinion regarding whether the Code of Ethics prohibits the Health Services Council from counting a recusing member as present in order to establish a quorum. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not regulate the quorum requirements of public bodies. The Code of Ethics requires that individual members of public bodies recuse from participation and voting on matters that are likely to result in a direct financial benefit or detriment to themselves, their family/household members, their employers and business associates. The impact of such recusal upon the public body's ability to achieve a quorum or conduct business is not addressed by the Code of Ethics. The Petitioner is the Chair of the Health Services Council, an entity he describes as follows: The Health Services Council is a 24-member advisory body to the Rhode Island Director of Health. The Council is formed pursuant to R.I.G.L. 23-17-13, whose members are appointed by the Speaker of the House, the President of the Senate, and the Governor. The functions of the health Services Council are set forth in detail at R.I.G.L. 23-17-14, but primarily function as an advisory body to the Director of Health relating to the granting or denial of certificates of need (CON) pursuant to R.I.G.L. 23-15 and with respect to changes in owner or operator of licensed health care facilities and in matters involving initial licensure of new health care facilities (R.I.G.L. 23-17). The functions of the Health Services Council are limited to advisory roles to the Director of Health. [1] The Petitioner asks a very narrow question in this request for an advisory opinion. Acknowledging that members of the Health Services Council properly and regularly recuse from participation and voting when required to do so by the Code of Ethics, he asks whether such a recusing member may still be counted for the purpose of determining whether a quorum of Council members is present in order to conduct business. A person subject to the Code of Ethics, such as a member of the Health Services Council, is not permitted to participate in any matter in which he or she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his or her duties in the public interest. See 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, household member or business associate, or any business by which he or she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. See R.I. Gen. Laws § 36-14-7(a); Regulation 36-14-5004. Similarly, a person subject to the Code of Ethics is prohibited from using his or her public position or confidential information received through his or her position to obtain financial gain, other than that provided by law, for him or herself, a business associate, an employer or a family or household member. See R.I. Gen. Laws § 36-14-5(d); Regulation 36-14-5004. A person subject to the Code of Ethics is required to formally recuse from participation, including discussion and voting, in matters implicating the above-referenced conflicts of interest. See R.I. Gen. Laws § 36-14-6. Formal recusal requires that a written statement of conflict of interest, often referred to as a notice of recusal, be prepared and delivered to the Ethics Commission pursuant to the requirements of section 36-14-6. While the Code of Ethics regulates the conduct of individual members of a public body, it does not address the authority of the public body, as a whole, to act. The question of whether a quorum exists is generally relevant to establishing a public board's compliance with its enabling legislation, regulations, procedures, rules, by-laws, and with the Open Meetings Act (R.I. Gen. Laws § 42-46-1 et. seq.). It is suggested that the Petitioner look to these and any other applicable provisions to determine whether a recusing member can be considered present for the purpose of establishing a quorum. In summary, it is the opinion of the Ethics Commission that the Rhode Island Code of Ethics neither prohibits the Health Services Council from counting a recusing member as present for the purpose of establishing a quorum, nor does it authorize such practice. Accordingly, we strongly urge the Health Services Council to determine whether such a practice complies with other provisions of law including, but not limited to, the Health Services Council's enabling legislation, regulations, procedures, rules, by-laws, and the Open Meetings Act. Code Citations : § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Regulation 36-14-5004 Keywords : Recusal [1] While the Petitioner describes the Health Services Council's various roles as "advisory," it appears that the Council's findings and recommendations are, by law, afforded a weight that may not be easily disregarded by the licensing agency. See R.I. Gen. Laws § 23-17-14-4(d)("The decision of the licensing agency shall be based upon the findings and recommendations of the health services council unless the licensing agency shall afford written justification for variance from these findings and recommendations.").