Advisory Opinion No. 2021-44 Rhode Island Ethics Commission Advisory Opinion No. 2021-44 Approved: June 8, 2021 Re: John A. Beauregard QUESTION PRESENTED: The Petitioner, a member of the North Smithfield Town Council, a municipal elected position, requests an advisory opinion regarding what restrictions, if any, the Code of Ethics places upon him in the discharge of his public duties, given the pending appointment of his sister to the position of Deputy Town Clerk by the Town Administrator, subject to approval by the Town Council. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the North Smithfield Town Council, a municipal elected position, is prohibited by the Code of Ethics from participating in discussion and voting relative to any Town Council matter in which his sister will be financially impacted, is a party or participant, will receive an employment advantage, or appears or presents evidence or arguments. However, the Petitioner is not required to recuse when his sister is before the Town Council in her official capacity as the Deputy Town Clerk, provided that all of the other requirements of Regulation 1.2.1(B)(1) are satisfied. The Petitioner is also prohibited from participating in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of his sister. Further, the Petitioner is prohibited from participating in discussion and voting relative to any budgetary line item that addresses or affects the employment, compensation or benefits of his sister, but may vote to approve or reject a budget as a whole. The Petitioner is likewise prohibited from participating in contract negotiations concerning his sister’s employment but may vote to approve or reject a collective bargaining agreement or employment contract for Town employees as a whole. The Petitioner was elected to the North Smithfield Town Council (“Town Council”) in November of 2020, and currently serves as its President. Prior to that, he served as a member of the Town Council between 2016 and 2018. He is a retired member of the Rhode Island State Police, having served in that capacity for twenty-five years. The Petitioner states that his sister has been employed by the Town of North Smithfield (“Town” or “North Smithfield”) since May of 2017. He further states that his sister was originally hired as the Assistant to the Town Administrator and was later promoted to the position of Recording Clerk. The Petitioner’s sister has been recommended for appointment to the position of Deputy Town Clerk by the Town Administrator, which requires the approval of the Town Council. The Petitioner informs that the Town Council’s meeting agenda for May 3, 2021, included formal notice of the appointment by the Town Administrator of the Petitioner’s sister to the position of Deputy Town Clerk, subject to the approval of the Town Council. The Petitioner further informs that, prior to the Town Council’s consideration of such appointment on May 3, 2021, he recused from voting or otherwise participating because of his familial relationship with the candidate. The Petitioner represents that, at the time of his recusal, a fellow member of the Town Council moved to table any Town Council action on the appointment, asserting that the Petitioner was required by the Code of Ethics to take additional action beyond his recusal. The Petitioner adds that the appointment of his sister to the position of Deputy Town Clerk remains pending. The Petitioner states that the duties of the Deputy Town Clerk are set forth in the Town Charter and state statutes and include such other duties as the Town Administrator or the Town Council may require. The Petitioner explains that the duties required by the Town Council of the Deputy Town Clerk would include the determination of agenda items and the maintaining of minutes during a Town Council meeting, but only in the event of the Town Clerk’s unavailability. The Petitioner informs that the Deputy Town Clerk reports directly to the Town Clerk, who reports directly to the Town Administrator. The Petitioner states that the Town Council might be called upon to participate in discussion or decision-making relative to a budgetary line item that would address or affect the Deputy Town Clerk’s compensation, adding that he would recuse from all participation in such activity. He further informs that a collective bargaining agreement or employee contract for a North Smithfield employee, which might include the position of Deputy Town Clerk, requires final approval by the Town Council, but that the Town Council is not involved in the negotiation of such a collective bargaining agreement or employment contract. The Petitioner represents that, were his sister to appear before the Town Council, it would likely be solely in her public capacity as the Deputy Town Clerk and, were that not the case, the Petitioner would recuse from participation in the matter or seek further guidance from the Ethics Commission. It is in the context of these representations that the Petitioner seeks general guidance from the Ethics Commission regarding what limitations, if any, the Code of Ethics places upon him in the discharge of his public duties, given the pending appointment of his sister to the position of Deputy Town Clerk. Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A public official will have an interest that is in substantial conflict with the proper discharge of his public duties if it is reasonably foreseeable that a direct monetary gain or loss will accrue, by reason of his official activity, to himself, his family member, his business associate, or any business by which he is employed or which he represents. Section 36-14-7(a). Further, section 36-14-5(d) prohibits a public official from using his position, or confidential information received through his position, to obtain financial gain, other than that provided by law, for himself, his family member, his business associate, or any business by which he is employed or which he represents. Participation in Matters That Involve or Financially Impact the Petitioner’s Sister In addition to the above-cited provisions, the Code of Ethics contains specific regulations aimed at curbing nepotism. Under the general nepotism provisions of Commission Regulation 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) (“Regulation 1.3.1”), a public official shall not participate in any matter as part of his public duties if he has reason to believe or expect that any person within his family or any household member is a party to or a participant in such matter, or will derive a direct monetary gain, suffer a direct monetary loss, or obtain an employment advantage. Regulation 1.3.1(B)(1). See, e.g., A.O. 2013-8 (opining that a Bristol Town Council member was prohibited by the Code of Ethics from participating in the Town Council’s appointment of a new harbormaster and review of any amendments to the harbormaster’s job description, given that his brother was then serving as interim harbormaster and was also one of nineteen applicants for the permanent harbormaster position). The definition of “any person within his [] family” specifically includes sister. Regulation 1.3.1(A)(2). Notably, Regulation 1.3.1(B)(1) not only prohibits actions by a public official that would financially impact his family member, but also applies when such actions involve a family member as a party or participant, regardless of the potential for financial impact. Further, under Regulation 1.3.1(B)(1), a public official is prohibited from participating in matters that may bestow an employment advantage upon a family member. Such an advantage, which might not appear to be a direct financial gain, could be some type of opportunity (such as an educational or travel experience) or resource (such as access to enhanced technology) that the family member would not otherwise have had. Buttressing the nepotism prohibitions within the Code of Ethics, Commission Regulation 520-RICR-00-00-1.2.1(A)(1) Additional Circumstances Warranting Recusal (36-14-5002) (“Regulation 1.2.1”) states that a public official must also recuse from participation in his official capacity when any person within his family or household appears or presents evidence or arguments before his municipal agency. The exception found at Regulation 1.2.1(B)(1) states that a public official is not required to recuse pursuant to this or any other provision of the Code of Ethics when his family or household member is before his municipal agency solely in an official capacity as a duly authorized member or employee of another municipal agency, to participate in non-adversarial information sharing or coordination of activities between the two agencies, provided that the family member is not otherwise a party or participant, and has no personal financial interest, in the matter under discussion. See, e.g., A.O. 2018-59 (opining that a member of the Westerly Town Council was not prohibited from participating in the Town Council’s discussions and decision-making relative to matters involving the Westerly School Committee and/or the Elementary School Redesign Committee, notwithstanding that his wife was then serving on both committees, provided that neither the petitioner nor his wife had a personal financial interest in any matter under discussion and that all other requirements of what is now Regulation 1.2.1(B)(1) were satisfied). In summary, in the event that the Petitioner’s sister is a party to or participant in a matter before the Town Council, or will be directly financially impacted or obtain an employment advantage by the Town Council’s decision-making, or appears or presents evidence or arguments before the Town Council, the Petitioner is required to recuse consistent with section 36-14-6. However, were the Petitioner’s sister to appear before the Town Council solely in her public capacity as the Deputy Town Clerk, a duly appointed employee of the Town, the Petitioner would not be required by the Code of Ethics to recuse, provided that all of the other requirements of Regulation 1.2.1(B)(1) were also satisfied. Participation in Supervision and Evaluation of the Petitioner’s Sister Regulation 1.3.1 prohibits a public official from participating in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within his family, or from delegating such tasks to a subordinate, except in accordance with advice received in a formal advisory opinion from the Ethics Commission. Regulation 1.3.1(B)(2)(a)&(b). See, e.g., A.O. 2016-26 (opining that a lieutenant in the East Greenwich Fire Department was not prohibited from serving in that position upon the hiring of his brother as a probationary firefighter in the same department, provided that certain procedures were followed so that the lieutenant was removed from personnel decisions or other matters that particularly affected his brother). Here, the Petitioner represents that he recused from participation in the consideration by the Town Council of the Town Administrator’s appointment of his sister to the position of Deputy Town Clerk, and that he will continue to do so when the matter next goes before the Town Council for consideration. He adds that he will play no role in his sister’s supervision should the other members of the Town Council approve her appointment. The Petitioner is, nonetheless, reminded that he is prohibited from participating in matters that involve the supervision, evaluation, appointment, classification, promotion, transfer or discipline of his sister. Participation in Budgets Regulation 1.3.1 also addresses a public official’s participation in budget matters that could financially impact or involve the public official’s family member. Specifically, a public official is prohibited from participating “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 [] family.” Regulation 1.3.1(B)(3)(a). However, Regulation 1.3.1(B)(3)(c) provides that a public official is not prohibited from participating “in discussion or decision-making relative to approving or rejecting the entire budget as a whole, provided that the person within his [] family . . . 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.” See, e.g., A.O. 2020-44 (opining, among other things, that a member of the Town of New Shoreham Town Council was prohibited from participating in discussion and voting relative to any budgetary line item that would address or affect the employment, compensation or benefits of his brother; however, that petitioner could participate in the Town Council’s discussion and vote relative to approving or rejecting the entire budget as a whole). The basis for allowing participation relative to the budget as a whole is an assumption that a vote on the entire budget is sufficiently remote from most particular line items so as to not constitute a substantial conflict of interest in violation of the Code of Ethics. Therefore, as appropriately anticipated by the Petitioner, while he is prohibited from participating in the Town Council’s discussion and voting relating to budgetary line items that would address or affect the employment, compensation or benefits of his sister, the Petitioner may participate in the Town Council’s discussion and vote to approve or reject the entire budget as a whole. Participation in Collective Bargaining/Employee Contracts Regulation 1.3.1(B)(4) also addresses a public official’s participation in collective bargaining/employee contracts. It specifically prohibits a public official from participating in negotiations relative to an employee contract or collective bargaining which addresses or affects the employment, compensation or benefits of any person within his family or a household member. 1.3.1(B)(4)(a). However, a public official may participate in a decision to accept or reject an entire employee contract or collective bargaining agreement as a whole, provided that the person within his family or his household member is impacted by the contract or agreement 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. 1.3.1(B)(4)(b). The basis for allowing such participation is an assumption that a vote on an entire contract, once negotiated by others, is sufficiently remote from individual contract issues impacting a family member so as to not constitute a substantial conflict of interest in violation of the Code of Ethics. Here, the Petitioner states the Town Council is not involved in negotiating a collective bargaining agreement or employee contract for North Smithfield employees, which might include the position of Deputy Town Clerk, but is tasked with voting to approve or reject a final collective bargaining agreement or employee contract as a whole. Although the Petitioner is permitted to participate in the overall vote to approve or reject a collective bargaining agreement or employee contract as a whole, the Ethics Commission is aware that a general discussion can quickly devolve into a more specific review of contractual provisions. As such, the Petitioner must be vigilant about identifying such instances where a general conversation begins to focus on individual aspects of the contract that are likely to financially impact his sister. Should those circumstances arise, the Petitioner must recuse from further participation consistent with section 36-14-6 or seek further guidance from the Ethics Commission. Conclusion In conclusion, it is the opinion of the Ethics Commission that the Petitioner is prohibited by the Code of Ethics from participating in discussion and voting relative to any Town Council matter in which his sister will be financially impacted, is a party or participant, will receive an employment advantage, or appears or presents evidence or arguments. However, the Petitioner is not required to recuse when his sister is before the Town Council in her official capacity as the Deputy Town Clerk, provided that all of the other requirements of Regulation 1.2.1(B)(1) are satisfied. The Petitioner is also prohibited from participating in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of his sister. Further, the Petitioner is prohibited from participating in discussion and voting relative to any budgetary line item that addresses or affects the employment, compensation or benefits of his sister, but may vote to approve or reject a budget as a whole. The Petitioner is likewise prohibited from participating in contract negotiations concerning his sister’s employment but may vote to approve or reject a collective bargaining agreement or employee contract for Town employees as a whole. Notice of recusal in any instance shall be filed with the Ethics Commission consistent with section 36-14-6. This advisory opinion cannot anticipate every possible situation in which a conflict of interest might arise and, thus, provides only general guidance as to the application of the Code of Ethics based upon the facts represented above. The Petitioner is encouraged to seek additional advice from the Ethics Commission in the future as more specific questions regarding potential conflicts of interest arise. This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) 520-RICR-00-00-1.2.1Additional Circumstances Warranting Recusal (36-14-5002) 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) Related Advisory Opinions: A.O. 2020-44 A.O. 2018-59 A.O. 2016-26 A.O. 2013-8 Keywords: Budget Collective Bargaining Nepotism