Advisory Opinion No. 2010-3 Advisory Opinion No. 2010-3 Re: Danielle Coulter QUESTION PRESENTED The Petitioner, a member of the Tiverton School Committee, a municipal elected position, requests an advisory opinion regarding what limitations the Code of Ethics places on her, if any, if her spouse provides brief public comment during a School Committee workshop regarding merit pay for school personnel. 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 while her spouse appears before the School Committee during a School Committee workshop regarding merit pay for teachers, pursuant to Commission Regulations 36-14-5002(1) and 5004(b)(1), but may otherwise participate. The Petitioner is a member of the Tiverton School Committee (“School Committee”). The Petitioner states that the School Committee has recently voted to conduct a workshop on Tuesday, November 24, 2009, to consider the topic of merit pay for school personnel.[1] The Petitioner states that the workshop will differ from a “regular” School Committee meeting in that it will be focused on one topic, will take longer than a regular meeting, and will be open to the public for comment much more broadly than a regular meeting. All interested members of the public will have the ability to speak, but speakers will be limited to approximately three minutes of comment, subject to the reasonable control of the School Committee Chairperson. School Committee members will attend and participate, but no vote will be taken. The Petitioner states that the workshop has been noticed as a regular meeting of the School Committee and School Committee members will be there in their official capacities as School Committee members. Given this set of facts, the Petitioner asks if: (1) she must recuse from participating at the workshop if her husband provides public comment as one of the speakers limited to approximately three minutes of remarks; and (2) if she must recuse from any follow-up formal activity that the School Committee might pursue at a regular meeting on this topic. 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(1) requires a public official to recuse herself from participation and to notify her board or agency in writing when her spouse appears before her board or agency. Finally, Commission Regulation 36-14-5004(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 with this Petitioner’s prior request in Advisory Opinion 2009-43, the central focus of this request is the question of what limitations are placed upon her by Regulation 5002(1) and Regulation 5004(b)(1); more specifically, what does the Code require 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 a threshold matter, we note that Regulation 5002(1) applies only when the Petitioner’s spouse appears before “her board or agency.” Thus, if the School Committee is duly convened as a body and her spouse appears before the body, she must recuse. We further note that it is beyond the jurisdiction of the Ethics Commission to make a determination, pursuant to R.I. Gen. Laws § 42-46-2 (“Open Meetings”), as to whether this particular workshop constitutes a meeting of the School Committee and that, rather, the proper agency to make such a determination is the Department of the Attorney General. However, given that the definition of “meeting” provided at R.I. Gen. Laws § 42-46-2(a) states that “[a]s used herein, the term ‘meeting’ shall expressly include, without limiting the generality of the foregoing, so-called ‘workshop,’ ‘working,’ or ‘work’ sessions,” id., and, given that the Petitioner articulates a number of other indicia which would indicate that this workshop is to be considered a meeting of the School Committee, including that it was posted as a meeting of the School Committee, it is open to the public, and that members will be there in their official capacities as School Committee members, we will assume for the purposes of this advisory opinion that this workshop is in fact a meeting of the School Committee and, therefore, that that entity is duly constituted. 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). Accordingly, as to the Petitioner's first question of whether she must recuse if her spouse appears before the School Committee to provide comment at this workshop, the Code is clear: Regulation 5002(1) requires her to recuse. See A.O. 2009-43 (Tiverton School Committee member must recuse if spouse appears before the School Committee to propose a workshop on merit compensation); 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). What this means practically in this particular set of circumstances is that the Petitioner may participate in the instant School Committee workshop, but must recuse, in accordance with R.I. Gen. Laws § 36-14-6, only when her husband provides his public comment. We note that this opinion is limited to the facts of this specific Petitioner’s request, with due consideration given to the totality of the circumstances including the fact that the Petitioner’s spouse has not brought, and is not participating in, a specific agenda item, and is providing comment in the same manner that all members of the public will be permitted to do so, and that this meeting of the School Committee is being conducted as a workshop with no actual School Committee vote being taken. Assuming there are no other facts that would implicate the prohibitions found in the Code of Ethics, the Petitioner is not prohibited from otherwise participating in this workshop. As to the Petitioner’s second question, whether she must recuse from follow-up activity on this topic that the School Committee might pursue at a regular meeting, barring any other facts that would implicate additional prohibitions found in the Code, if the Petitioner’s spouse is neither participating at that juncture, nor appearing before the School Committee, she need not recuse. In regard to the Petitioner’s other questions, we opine that 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 Keywords: Nepotism Recusal [1] This Petitioner previously received an Advisory Opinion from this Commission, Advisory Opinion 2009-43, regarding the prohibitions placed upon her by the Code of Ethics if her spouse should appear before the School Committee to propose a workshop regarding merit compensation for school personnel. In her original request, the Petitioner had asked what limitations might be placed on her if any such workshop came to fruition; the Commission declined to address that question at that time, as the facts of the workshop were too hypothetical, but encouraged the Petitioner to seek further advice if she were uncertain whether any particular future circumstances warranted her recusal.