Advisory Opinion No. 2010-28 Rhode Island Ethics Commission Advisory Opinion No. 2010-28 Re: Gail Chatfield QUESTION PRESENTED The Petitioner, Deputy Town Clerk for the Town of Scituate, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from drafting meeting agendas and minutes, in accordance with the Open Meetings Act, which include matters that may financially impact herself or her family members. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, Deputy Town Clerk for the Town of Scituate, a municipal appointed position, is not prohibited by the Code of Ethics from drafting meeting agendas and minutes, in accordance with the Open Meetings Act, which may include matters that may financially impact herself or her family members, provided that she will not be exercising any discretionary or decision-making authority in carrying out these ministerial activities. The Petitioner is the Deputy Town Clerk for the Town of Scituate and has served in that position for approximately eight years. She states that her duties include, among other things, creating and posting public meeting agendas and, on occasion, taking meeting minutes for the Scituate Town Council (“Town Council”). She states that the Town Council makes an audio-recording of its meetings and that minutes are transcribed from the recording. She further states that she only transcribes the Town Council meeting minutes if the Town Clerk is otherwise unavailable to do so. She represents that both the agenda and minutes require approval from the Town Council or the Town Clerk before they are finalized. The Petitioner states that she also creates and posts agendas for other agencies and their committees within the Town, except not for the Zoning and Planning Boards, whose agendas are prepared by other Town staff. She does not prepare meeting minutes for any agency or committee within the town, other than the Town Council. The Petitioner represents that her mother recently applied to the town for a special use permit and height variance to erect a wind turbine on her property. The Petitioner states that her mother’s property abuts her own property and that she received an abutter’s notice when her mother’s requests were scheduled to go before the Zoning Board of Review (“Zoning Board”). When these matters appeared before the Zoning Board, they were continued pending the outcome of further study. The Petitioner states that, as a result, the Town Council formed a Wind Turbine Study Committee to provide advice to the Council and to potentially draft an ordinance on wind turbines for the Town Council’s consideration. The Petitioner states that this committee is purely advisory in nature and is not empowered to take any binding action, but rather, is charged with providing input to the Town Council regarding wind turbines. With this set of facts, the Petitioner requests an advisory opinion regarding whether the Code of Ethics prohibits her from preparing agendas for the Wind Turbine Study Committee and the Town Council, as well as minutes for the Town Council, if required, when matters involving wind turbines appear in those agendas or minutes, given that her mother has a special use permit and height variance request involving a wind turbine on her property pending before the Zoning Board, and, furthermore, the Petitioner’s property abuts her mother’s property, which is the subject of the pending requests. The Code of Ethics provides that a public official or employee shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction 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 exists if the official or employee has reason to believe or expect that she or any family member, among others, 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). Also, a public official or employee may not use her public position to obtain financial gain, other than that provided by law, for herself or any member of her immediate family. See R.I. Gen. Laws § 36-14-5(d). Also pertinent to this Petitioner’s set of facts is Commission Regulation 36-14-5004, regarding nepotism. Pursuant to Commission Regulation 36-14-5004(b)(1), a public official may not participate in any matter as part of her public duties if a family member is a participant or party to the matter, or if there is reason to believe that a family member will be financially impacted. In this Petitioner’s set of facts, her duties include the creation of agendas for the Town Council and Wind Turbine Study Committee and the transcription of meeting minutes for the Town Council, activities which may require her to process information that touches upon a matter, the regulation of wind turbines in the Town of Scituate, in which she and her mother have a direct financial interest. Black’s Law Dictionary defines ministerial as “[o]f or relating to an act that involves obedience to instructions or laws instead of discretion, judgment or skill” and includes as an example “the court clerk’s ministerial duties include recording judgments on the docket.”[1] It is the opinion of this Commission that the creating and posting of meeting agendas and the taking and/or transcribing of meeting minutes are quintessential ministerial activities. Accordingly, given that the Petitioner has no power or discretionary decision-making authority in these matters, but rather, is merely carrying out her ministerial functions as Deputy Town Clerk, which must further be approved by either the Town Council or the Town Clerk, we opine that the Petitioner is not prohibited by the Code of Ethics from creating and posting Town Council, Wind Turbine Study Commission, and other municipal agency agendas, or transcribing Town Council meeting minutes which relate to wind turbines, notwithstanding the fact that the Petitioner’s mother, and the Petitioner herself, as an abutting property owner to her mother’s property, have a direct financial interest in the regulation of wind turbines in the Town of Scituate. Furthermore, we note that the Commission has recently issued an analogous advisory opinion, in which we opined that the District Clerk for the Manville Fire District, whose duties included posting agendas and taking meeting minutes for that fire district, and whose spouse served as the Deputy Chief in the same fire district, was not prohibited from carrying out these duties, notwithstanding the fact that some of these agendas and minutes may include items that themselves financially impact her spouse, given the limited nature of that Petitioner’s duties. See A.O. 2010-21. However, if the Petitioner’s duties as Deputy Town Clerk should expand or change in such a way that there is the potential for her official actions to financially impact herself, her family members or her business associates, she is encouraged to seek further advice from this Commission. Finally, we note that the Petitioner is advised that this opinion only addresses the application of the Code of Ethics and does not address whether any other statutes, rulings, regulations, charters, ordinances or policies prohibit or regulate the represented activities. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) Commission Regulation 36-14-5004 Related Advisory Opinions: A.O. 2010-21 Keywords: Family Ministerial [1] Black’s Law Dictionary 1011 (7th ed. 1999).