Advisory Opinion No. 2010-31 Rhode Island Ethics Commission Advisory Opinion No. 2010-31 Re: Alice C. Brady QUESTION PRESENTED The Petitioner, a guidance counselor for the North Providence School Department, a municipal employee position, who is seeking election to the North Providence Town Council, requests an advisory opinion regarding what limitations the Code of Ethics places on her, if elected, given her own municipal employment and the fact that her sons serve in the respective positions of police officer and firefighter in the Town of North Providence. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a guidance counselor in the North Providence School Department, a municipal employee position, is not inherently prohibited by the Code of Ethics from seeking election to and serving on the North Providence Town Council, while simultaneously serving as a municipal employee. However, if elected, the Petitioner must exercise caution in conducting a matter-by-matter analysis and recuse in accordance with R.I. Gen. Laws § 36-14-6 or request further advice from this Commission when the facts presented implicate the prohibitions found in the Code of Ethics. The Petitioner is employed as a guidance counselor in the North Providence School Department (“School Department”). She states that she has two sons employed by the Town of North Providence: one who serves as a police officer, and another who serves as a firefighter. The Petitioner states that she has filed papers with the North Providence Board of Canvassers to seek election to a seat on the North Providence Town Council (“Town Council”). Based on these facts, the Petitioner asks what restrictions the Code of Ethics places on her if elected, specifically in regards to participation and voting on the budgets for the School Department, Police Department, and Fire Department. Under the Code of Ethics, a public official or employee may not participate in any matter in which she has an interest, financial or otherwise, 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). An official will have an interest in substantial conflict with her official duties if it is likely that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, a family member, employer, business associate, or a business that she represents. See R.I. Gen. Laws § 36-14-7(a). Also, R.I. Gen. Laws § 36-14-5(b) prohibits a public official or employee from accepting other employment that will either impair her independence of judgment as to her official duties or employment or require her to disclose confidential information acquired by her in the course of her official duties. Finally, R.I. Gen. Laws § 36-14-5(d) provides that a public official may not use her office for pecuniary gain, other than provided by law, for herself, a family member, employer, business associate, or a business that she represents. The Code of Ethics does not create a blanket prohibition against municipal employees running for elective office, whether at the state or municipal level. See A.O. 2007-46 (opining that the City Clerk for the City of Central Falls may seek election to the Central Falls City Council while simultaneously employed as City Clerk); A.O. 2000-61 (opining that an employee of the Foster School Department may seek election to and serve on the Foster Town Council); A.O. 99-74 (opining that the Confidential Secretary to the Lincoln Superintendent of Schools was not prohibited by the Code of Ethics from running for a position on the Lincoln School Committee). Thus, consistent with these prior advisory opinions, it is the opinion of the Ethics Commission that that the Petitioner may campaign for the office of Town Council while simultaneously employed by the School Department as a guidance counselor and that doing so does not, in and of itself, present an inherent conflict of interest under the Code of Ethics. The law does provide, however, that persons subject to the Code may not use their public positions for private gain or financial advantage and may not participate in public decisions when their independence of judgment has been impaired because of a private interest. See R.I. Gen. Laws § 36-14-5(a), (b) and (d). Additionally, the Petitioner is cautioned that provisions of the Code of Ethics prohibit her from using any public time or resources to support her candidacy. See A.O. 2007-33 (opining that a Program Coordinator for Rhode Island Housing may run for a position on the Central Falls City Council, but must refrain from using public time or resources to support her candidacy). All campaign-related activity must be conducted on her own time and without the use of North Providence municipal resources. Further, Commission Regulation 36-14-5004(b)(3) specifically addresses the question raised by the Petitioner with respect to participation in budgetary matters coming before the Town Council, including the Fire and Police Departments budgets. It reads, in pertinent part: (A) General Prohibition. No person subject to the Code of Ethics shall participate in discussion or decision-making relative to a budgetary line item that would address or affect the employment, compensation or benefits of any person within his or her family or a household member. (B) Specific Line Items. Notwithstanding the prohibition set forth in subsection 3(A), a person subject to the Code of Ethics may, only in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion, participate in discussion or decision-making relative to a budgetary line item that addresses or affects the employment, compensation or benefits of any person within his or her family or a household member as a member of a significant and definable class of persons, and not individually or to any greater extent than any other similarly situated member of the class. (C) Vote on Entire Budget. Notwithstanding the prohibition set forth in subsection 3(A), a person subject to the Code of Ethics may participate in discussion or decision-making relative to approving or rejecting the entire budget as a whole, provided that the person within his or her family or household member is impacted by the entire budget as a member of a significant and definable class of persons, and not individually or to any greater extent than any other similarly situated member of the class. Commission Regulation 36-14-5004(b)(3). Pursuant to this provision, the Petitioner, if elected, is prohibited from participating in any Town Council discussion or voting on line items in the Police Department or Fire Department budgets. However, the Petitioner is permitted to participate in the Town Council’s discussion and decision-making relative to approving or rejecting those budgets as a whole. See A.O. 2009-12 (opining that a member of the Coventry Town Council, whose spouse is a Lieutenant in the Coventry Police Department, is prohibited from participating in discussion or decision-making relative to budgetary line-items that would address her spouse’s employment, but may participate in discussion or decision-making relative to approving or rejecting the entire police department budget as a whole); A.O. 2007-30 (opining that a member of the East Providence School Committee was prohibited by the Code of Ethics from participating in any budgetary line item relative to bus monitors, given that he had a family member who was employed as a bus monitor, but that he may vote on the budget as a whole). As to the Petitioner’s question regarding voting on the School Department’s budget, if elected, given that she is an employee of the School Department, the same analysis would apply: the Petitioner would not be prohibited by the Code of Ethics from participating in the Town Council’s discussion and decision-making relative to approving or rejecting the entire School Department budget as a whole. The basis for allowing such participation is the proposition that a vote on an overall budget is sufficiently remote from most particular line items so as not to constitute a substantial conflict of interest in violation of the Code. The Petitioner specifically represents that the Town Council votes only on the total monetary appropriation for education and does not consider or discuss any separate line items therein. Although the Petitioner is permitted to participate in the overall vote to approve or reject the School Department’s budget as a whole, the Commission is aware that a general discussion can quickly devolve into a more narrow review of specific items. The Petitioner must be vigilant to identify such instances where a general conversation begins to focus on issues that are likely to financially impact her. In such circumstances, the Petitioner must recuse from further participation pursuant to R.I. Gen. Laws § 36-14-6, and or seek further guidance from the Ethics Commission. Finally, the Petitioner is advised that this opinion solely addresses the application of the Code of Ethics to the facts as represented by the Petitioner. 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(b) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5004 Related Advisory Opinions: A.O. 2009-12 A.O. 2007-46 A.O. 2007-33 A.O. 2007-30 A.O. 2000-61 A.O. 99-74 Keywords: Budgets Family: Public Employment Recusal