Advisory Opinion No. 2009-43 Advisory Opinion No. 2009-43 Re: Danielle R. Coulter QUESTION PRESENTED The Petitioner, a member of the Tiverton School Committee, a municipal elected position, requests an advisory opinion regarding whether she must recuse from participation if her spouse appears before the School Committee to request that the School Committee hold a workshop to solicit input regarding implementation of a staff compensation scheme involving both market and merit pay elements. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a member of the Tiverton School Committee, a municipal elected position, must recuse if her spouse appears before the School Committee to request that the School Committee hold a workshop to solicit input regarding implementation of a staff compensation scheme involving both market and merit pay elements, pursuant to Commission Regulations 36-14-5002(1) and 5004(b)(1). The Petitioner is a member of the Tiverton School Committee (“School Committee”).[1] The Petitioner states that her spouse asked to be placed on the School Committee agenda of the Tuesday, October 13, 2009 meeting of that entity, to request that the School Committee hold a workshop to solicit input from various stakeholders to consider implementation of a staff compensation scheme involving market and merit pay elements. The Petitioner represents that no financial interest did or would accrue to the benefit of either the Petitioner or her spouse as a result of his appearance before the School Committee on this matter. At the time of the October 13, 2009 meeting, the question arose as to whether ethics prohibitions were implicated by the Petitioner’s spouse’s appearance before the School Committee; immediately thereafter, the Petitioner’s spouse requested that the matter be tabled until a later date, pending the issuance of an advisory opinion from this Commission. Accordingly, the Petitioner now requests an advisory opinion and specifically asks: 1) whether she must recuse if her spouse appears before the School Committee on this matter; 2) whether she must recuse if the School Committee at some later time has discussion and a vote on whether to hold a workshop on this matter; 3) whether she must recuse from participation in any workshop that subsequently happens as a result of such vote; 4) whether she must recuse from action taken by the School Committee as a result of the workshop; 5) whether she must recuse if her spouse does not appear before the School Committee; and 6) whether she must recuse regardless of who appears before the School Committee on these matters, if her spouse is the person who originally requested the agenda item. Under the Code of Ethics, a public official may not participate in any matter in which she has a financial interest which is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if she has reason to believe or expect that she, any family member or business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. See R.I. Gen. Laws § 36-14- 7(a). The official is further prohibited from using her public position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself, a business associate or a family member. See R.I. Gen. Laws § 36-14-5(d). Additionally, Commission Regulation 36-14-5002, section (1), (“Regulation 5002(1)”) requires a public official to recuse herself from participation and notify her board or agency in writing when her spouse appears before her board or agency. Finally, Commission Regulation 36-14-5004(b)(1) (“Regulation 5004(b)(1)”) regarding “Nepotism Generally” requires that “no person subject to the Code of Ethics shall participate in any matter as part of . . . her public duties if . . . she has reason to believe or expect that any person within . . . her family . . . is a party to or a participant in such matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage, as the case may be.” Id. As this Petitioner represents that there is no potential financial impact to herself or her spouse regardless of what happens in this matter, the central focus of the Petitioner’s request becomes the question of what the limitations of the prohibitions placed upon her by Regulation 5002(1) and Regulation 5004(b)(1) are, specifically, what the Code requires her to do when her spouse either “appears before . . . her board/agency” or “is a party to or participant” in “any matter” which comes before her “ as part of . . . her public duties.” Id. As to the Petitioner’s first question of whether she must recuse if her spouse appears before the School Committee on this matter, the Code is clear: Regulation 5002(1) requires her to recuse. See A.O. 2006-18 (opining that a member of the Barrington Town Council must recuse in matters relating to the Town’s acquisition of parkland for the potential use as baseball fields by the Barrington Little League if “her spouse makes an appearance before the Council” on said matters, given his position as coach and board member of the Little League); A.O. 2004-14 (opining that a member of the Tiogue Fire District Board must recuse, pursuant to Regulation 5002, whenever her spouse, who is a firefighter in the district, appears before the District Board); A.O. 2002-53 (opining that a potential part-time clerk for the Hopkins Hill Fire District Tax Collector may serve in that position, but would be required to recuse from participation whenever her spouse appears before the Fire District Board); A.O. 99-142 (opining that the Chair of the Jamestown Planning Commission may not participate, pursuant to Regulation 5002, in a decision about a proposed subdivision when the matter is being presented by her spouse, unpaid, on behalf of a third person, even though he would not be affected financially by any such decision, because he is appearing before the Petitioner). We note that neither Regulation 5002(1) nor Regulation 5004(b)(1) require any financial impact on the Petitioner or her spouse whatsoever; rather, all that is required in order to necessitate the Petitioner’s recusal is that her spouse “appears” before her board or agency pursuant to Regulation 5002(1) or is a “party to or participant in” any matter that requires her participation as part of her official duties as a School Committee member pursuant to Regulation 5004(b)(1). We further note that neither of these provisions limits the Petitioner’s spouse’s involvement in these matters or his ability to appear before the School Committee on these, or any other matters as a private citizen, nor do they limit his ability to speak publicly in any way; however, these provisions do require this Petitioner’s recusal from participation when her spouse appears before her or is a “participant” in such matters. Furthermore, we note that the Petitioner’s spouse’s presence at a School Committee meeting as a member of the general public, does not, in and of itself, constitute “participation” in a matter, for purposes of Regulation 36-14-5004, barring some other action or activity on his part. In regard to the Petitioner’s other questions, we opine that the circumstances regarding the potential workshop, the Petitioner’s spouse’s involvement, if any, in such workshop, and any School Committee action that may occur as a result of such workshop are currently too hypothetical to be addressed at this juncture. If this Petitioner is uncertain whether any particular future circumstances warrant her recusal, she is encouraged to request further advice from this Commission and/or recuse in accordance with R.I. Gen. Laws § 36-14-6. Code Citations : 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) Commission Regulation 36-14-5002 Commission Regulation 36-14-5004 Related Advisory Opinions : A.O. 2006-18 A.O. 2004-14 A.O. 2002-53 A.O. 99-142 Keywords : Nepotism Recusal [1] We note that while the Petitioner’s request for an advisory opinion was jointly submitted with her husband, this advisory opinion is directed solely at the limitations the Code of Ethics places on this Petitioner’s official actions as a School Committee member, given that when her spouse appears in his private capacity as a citizen before the Petitioner’s agency, his actions are not then limited by the prohibitions found in the Code.