Advisory Opinion No. 95-52

Re: Richard S. Humphrey

A. QUESTION PRESENTED

The Little Compton Town Solicitor requests an advisory opinion as to whether a violation of the Code of Ethics will result if (a) a Town Councilmen makes a motion recommending that the Council President receive a stipend up to $5000 for administrative duties performed for said Council, and if (b) the Town Council members, excluding the Council President, vote to approve this motion. The appropriation and the mechanism by which it is being distributed was recommended by a committee charged with reviewing the compensation of Town Council members, and approved of by the Little Compton electorate at their annual financial town meeting.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the members of the Little Compton Town Council, pursuant to the requirements of the Code of Ethics, should not participate in discussions or votes regarding whether the Town Council President, or any other Council member, may receive a stipend of up to $5000 for the administrative duties he or she carries out on behalf of the Town Council. The Commission bases its conclusions on, among others, the following observations: (a) the appropriation of the stipend and the mechanism by which it was distributed—allowing the Council members to decide among themselves who would be most appropriate to carry out the administrative responsibilities—was based on the recommendations of a committee formed by and on the initiative of the Town Council shortly after the November,1994, elections to review the compensation of Town Council members, (b) said recommendations, while approved by the Little Compton electorate at their annual financial town meeting, applied to the sitting Town Council, and (c) prohibiting said participation will not unfairly impact the members of the sitting Town Council in that at the time they sought election for the offices now held no such potential stipend existed.

C. DISCUSSION

1. Facts

Richard S. Humphrey, Little Compton Town Solicitor, advises that on January 19, 1995, the Little Compton Town Council formed a Town Council Compensation Committee (the “Compensation Committee”) to study council compensation and Provide recommendations. The members of the Town Council who voted to form the Compensation Committee stood for election in November, 1994; several had been Council members for several prior terms. Council members decided that one of the Committee’s mandates would be to develop a compensation plan for all Town Council members. After a series of meetings and hearings, and in a document entitled Recommendations of Committee to Study Salary and Benefits of Town Council Members, Little Compton, Rhode Island presented to the Town Council, the Compensation Committee recommended the following:

(a) that the annual compensation of Town Council members should be $2000 (up from $1678),

(b) that the annual compensation of the Town Council President should be $4000 (down from $4080), and

(c) that up to $5000 should be appropriated over the next fiscal year to one or more Council members for performing administrative duties required by the Town Council to conduct its business (a new category altogether).

The petitioner also advises that the annual compensation figures were reached after conducting research as to council compensation in other cities and towns in Rhode Island and nearby Massachusetts, and after consideration of the executive functions required of the Town Council President in Little Compton given that the town does not have a full time executive. See attachments 1 and 2. As to its recommendation that the Council members decide among themselves which Council member or members should receive up to $5000 this year only for carrying out administrative duties required by the Council, the Committee based this recommendation on the long standing tradition in Little Compton whereby the Town Council President takes on said entity’s administrative functions. This arrangement would exist for only one year so as to provide Council members sufficient time to consider how they should define and carry out required administrative functions in the future.

Mr. Humphrey also advises that the above recommendations were voted on and approved by the electorate at the annual Financial Town Meeting held on May 16, 1995. See attachment 3. Town Council members did not participate in the discussion or vote at the Town Meeting. The petitioner advises that subsequent to the electorate’s approval of these recommendations, Town Councilman John D. Silvia discussed his intention to recommend that Town Council President Jane P. Cabot receive the $5000 appropriated for performing administrative duties. The petitioner advises that if Mr. Silvia does in fact make such a motion, he will advise Ms. Cabot not to participate in any discussion or activity concerning the $5000 stipend while being considered by the other Council members.

Given the electorate’s approval of the above appropriation and the mechanism by which the responsibilities and funds would be distributed at the annual financial town meeting, Mr. Humphrey requests an advisory opinion as to whether it would be appropriate under the Code of Ethics if (a) Mr. Silvia makes a motion to recommend that Ms. Cabot receive the $5000 stipend to carry out administrative duties, and if (b) the motion is approved by the Town Council members in the absence of Ms. Cabot’s participation.

2. Analysis

The Little Compton Town Solicitor requests an advisory opinion as to whether under the Code of Ethics it is appropriate if (a) a Town Councilman makes a motion recommending that the Council President receive a stipend of $5000 for duties performed for said Council, and (b) the Town Council members, excluding the Council President, vote to approve this motion. The appropriation and the procedure by which it is allocated were recommended by a committee appointed by the Council and charged with reviewing the compensation of Town Council members, and these matters were subsequently approved by the Little Compton electorate at their annual financial town meeting.

Relevant provisions of the Code of Ethics include R.I. Gen. Laws § 36-14-5(d), prohibiting a public official or employee from using his or her official position or confidential information received thereby for financial gain; R.I. Gen. Laws § 36-14-5(e), prohibiting a public official or employee from representing himself or herself before any state or municipal agency of which he or she is a member or by which he or she is employed; and R.I. Gen. Laws § 36-14-7(a), stating that a public official or employee has an interest in substantial conflict with the proper discharge of his or her duties or employment in the public interest if he or she will derive a direct monetary gain by reason of said official action.

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the participation of members of the Town Council in any discussion or votes regarding the receipt of a stipend of up to $5000 by any other member(s) of the Council for the administrative duties carried out on behalf of the Town Council. This Commission bases its conclusions on the following representations by the petitioner: (a) that the appropriation of the stipend and the mechanism by which it is allocated—allowing the Council members to decide among themselves who would be most appropriate to carry out the administrative duties required by the Town Council—was based on the recommendations made by a committee formed by and on the initiative of the Town Council to review Council member compensation, (b) that said recommendations, while voted on and approved by the Little Compton electorate at their annual financial town meeting in which Town Council members did not participate or vote, applied to the sitting Town Council members, and (c) prohibiting said participation will not unfairly impact the members of the sitting Town Council in that at the time they sought election for the offices now held no such potential stipend existed. We further note that the Compensation Committee was appointed by the Council in January, 1995, just shortly after the Council members had stood for election, and in many instances, re-election in November, 1994.

In its General Advisory No. 6, issued in April, 1989, the Commission endeavored to provide guidance to Town Councils and other elected officials regarding salary raises. In that opinion, the Commission concluded that:

Where a public official takes any action with regard to salary or other benefits of employment which will benefit him or her directly, a probable cause violation of the Code will occur. Care must therefore be taken in every situation where the individual’s action might eventually lead to financial gain for him or her, a spouse, dependent child, or business associate.

Also, since 1989, the Commission has ruled consistently against allowing Town Council members to introduce, participate in the discussion of, or vote on compensation and health benefit issues affecting sitting Council members. Advisory Opinions 89-27, 89-32, 89-93, and 93-74.

Here, the Commission concludes that the involvement of the members of the Town Council in the compensation issue has been pervasive, notwithstanding their non-participation in the vote on the question at the financial town meeting. Given the nature and extent of that involvement, and the fact that each of the Council members sought the office under a pre-existing compensation scheme, the Commission advises that the members of the Town Council should not participate in discussions about or vote on outstanding issues relating to the compensation of one or more of the members.

Keywords

Compensation