Advisory Opinion No. 2010-5 Rhode Island Ethics Commission Advisory Opinion No. 2010-5 Re: Robert Coulter QUESTION PRESENTED The Petitioner, a member of the Tiverton Budget Committee, a municipal elected position, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places on him when: 1) the School Committee and the Budget Committee conduct joint meetings or workshops; and 2) the School Committee presents its proposed annual budget to the Budget Committee, given that his spouse is a member of the Tiverton School Committee. RESPONSE It is the opinion of the Ethics Commission that while all of the prohibitions in the Code of Ethics apply to the Petitioner, a member of the Tiverton Budget Committee, a municipal elected position, while he is performing his public duties as a Budget Committee member, those prohibitions do not otherwise prevent the Petitioner from participating in and performing his public duties when: 1) the School Committee and the Budget Committee conduct joint meetings or workshops; and 2) the School Committee presents its proposed annual budget to the Budget Committee, notwithstanding the fact that his spouse is a member of the Tiverton School Committee. The Petitioner is a member of the Tiverton Budget Committee (Budget Committee). The Petitioner’s spouse is a member of the Tiverton School Committee (School Committee). The Petitioner states that every year the Tiverton Town Council, School Committee and Budget Committee hold a workshop to discuss the budget. The Petitioner states that no votes are taken by the Budget Committee as part of the workshop. The Petitioner further states that every year when the School Committee presents its budget to the Budget Committee, members of the School Committee, accompanied by staff, personally appear before the Budget Committee and present the budget and engage in discussion of the budget as needed. The Petitioner now asks[1] what prohibitions the Code of Ethics places on him as he carries out his official duties as a Budget Committee member in the two aforementioned scenarios which involve the intersection of the School Committee and the Budget Committee, given that his spouse is a member of the School Committee. Under the Code of Ethics, a public official may not participate in any matter in which he has a financial interest 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). A substantial conflict of interest occurs if he has reason to believe or expect that he, any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws § 36-14- 7(a). The official is further 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 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 himself from participation and notify his board or agency in writing when his spouse appears before his 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 . . . his public duties if . . . he . . . has reason to believe or expect that any person within . . . his . . . 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 neither he nor his spouse have any financial interests in either of the scenarios presented, the central focus of the Petitioner’s request becomes the question of whether or not either Regulation 5002(1) or Regulation 5004(b)(1) apply to the scenarios described, in that the scenarios involve instances in which his spouse either “appears before . . . his . . . board/agency” or “is a party to or participant” in “any matter” which comes before him “as part of . . . his . . . public duties.” Id. In prior advisory opinions in which this Commission has applied Regulation 5002(1) so as to require recusal, the public official’s family member was either appearing in his or her private capacity, appearing as a public employee subordinate to the public official or the entity of which the official was a member, or had a private financial interest at stake. See, e.g., 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 was being presented by her spouse acting in his private capacity, unpaid, on behalf of a third person, even though he would not be affected financially by any such decision, because he was appearing before the Petitioner). In the instant case with both the joint Town Council/School Committee/Budget Committee budget workshop and the School Committee’s presentation of its budget to the Budget Committee, both the Petitioner and his spouse will be acting in their public capacities, with neither individual having supervisory discretion over the other, nor either individual having any personal financial interests at stake. Additionally, we opine that Regulation 5004(b)(1) does not prohibit this Petitioner from carrying out his duties as a Budget Committee member in either the joint workshop situation or in the School Committee’s presentation of its budget to the Budget Committee, given that both he and his spouse will be acting in their public capacities, with neither spouse supervising the other and no reasonably foreseeable financial benefit resulting for either spouse; to find otherwise would entirely disable those public officials who serve concurrently on the same entity with their spouses or other family members from fulfilling their public duties. See A.O. 2006-38 (regarding spouses simultaneously serving as Cumberland School Committee members); A.O. 2000-72 (opining that a teacher at the North Scituate Elementary School was not prohibited from running for the Glocester School Committee, notwithstanding that her husband was already a member of the Glocester School Committee); A.O. 98-132 (advising three brothers that they could simultaneously serve on the Board of Utility Commissioners for the Pascoag Fire District); and A.O. 96-117 (regarding spouses simultaneously serving as North Kingstown School Committee members). Accordingly, it is the opinion of the Ethics Commission that, barring any other additional facts which would implicate the prohibitions found in the Code of Ethics, the Petitioner is not prohibited from participating in the annual joint financial Town Council/School Committee/Budget Committee workshop. The Petitioner must continue to recuse from matters that might have a direct financial benefit upon his spouse, and thus, consistent with Advisory Opinion 2009-20, must recuse from any discussion or vote regarding School Committee members’ stipends, but may otherwise participate when the School Committee presents its proposed budget to the Budget Committee. Finally, the Petitioner is advised that this opinion solely addresses whether the Code of Ethics prohibits him, as a Budget Committee member, from participating in these matters in which his spouse, who is also a municipal elected official, participates. This opinion does not address whether any other statutes, rulings, policies, charters, or ordinances prohibit such activity. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) Commission Regulation 36-14-5002 Commission Regulation 36-14-5004 Related Advisory Opinions: A.O. 2006-38 A.O. 2006-18 A.O. 2004-14 A.O. 2002-53 A.O. 99-142 A.O. 98-132 A.O. 96-117 Keywords: Family [1] This Petitioner has previously received a prior relevant advisory opinion: Advisory Opinion 2009-20, regarding whether he may participate in Budget Committee matters regarding the School Committee budget, and opining that he may generally participate, but must recuse from discussion and voting regarding School Committee members’ stipends, given that his wife is a School Committee member who receives a stipend for her service.