Advisory Opinion No. 95-59

Re: Stephen E. Cicilline, Esq.

A. QUESTION PRESENTED

Whether a Smithfield school committee member, who is simultaneously associated with a community organization, may vote to allow said organization to use school facilities.

B. SUMMARY

It is this Commission's opinion that a Smithfield school committee member may vote to allow an organization he or she is associated with to use school facilities, unless the official's association with the organization allows him or her to affect the financial objectives of the organization, through formal voting rights or other means.

C. DISCUSSION

1. Facts

Mr. Cicilline is counsel for the Smithfield School Committee. He submitted this request on the behalf of the members of the school committee. The issue here involves the school committee's voting on the use of school facilities. The school committee is vested with the power to authorize local and outside organizations use of school buildings and grounds. Requests by organizations are submitted to the school committee at their regular meetings and voted upon. Most of the requesting organizations are non-profits. Regardless of the entity's financial goals the school committee usually does not charge for the use of a facility, unless there is an expense to pay for a custodian for either clean up or to open or close the building. According to Mr. Cicilline, because Smithfield is such a small town the same group of people are involved in various organizations. Many of the school committee members are also involved with other town organizations, but are not paid for their involvement. According to Mr. Cicilline, because of the overlap in participation if interested members are not allowed to vote approval for use of the grounds may not be possible.

2. Analysis

The petitioner asks whether a Smithfield school committee member, who is simultaneously associated with a community organization, may vote to allow said organization to use school facilities. Relying on R.I. Gen. Laws § 36-14-5 (a) "Prohibited Activities", 36-14-7 "Interest in conflict with the discharge of duties"and 36-14-2 "Definitions", it is this Commission's opinion that a Smithfield school committee member may vote to allow an organization he or she is associated with to use school facilities, unless the official's association with the organization allows him or her to affect the financial objectives of the organization, through formal voting rights or other means.

The Code of Ethics provides that a school committee member has a substantial conflict and is therefore barred from voting if he or she has reason to believe or expect that a business associate will derive a direct monetary gain by reason of his or her official activity. See R.I. Gen. Laws §§ 36-14-5 (a) and 7. The Code defines a business associate as "a person joined together with another person to achieve a common financial objective." R.I. Gen. Laws § 2 (8). Therefore, if a school committee member is simultaneously associated with an organization and has the ability to affect the financial objectives of that organization, he or she is, by definition, a business associate of the organization. Further, if that school committee member had reason to believe or expect that the organization would derive a direct monetary gain by reason of his or her vote, the school committee member would be barred from voting on the organization's request. The Code does not specifically define direct monetary gain. However, since other accommodations would presumably be at current fair market rates, the Commission concludes that a grant to use school facilities, at either no cost or a nominal fee, results in a direct monetary gain to the requestor. Accordingly, a school committee member who is simultaneously a business associate of an organization is barred from voting on the organization's request to use school facilities.

In his request, the petitioner advised that some of the organizations that come before the school committee are non-profits. He also noted that school committee members affiliated with certain of the organizations usually do not receive any remuneration as a result of their associations. It is the opinion of this Commission that these factors are irrelevant in this instance as the above cited Code provisions do not distinguish between an organization's financial status or an associate's compensation.

Finally, the petitioner expressed concern that in some instances the school committee might be unable to consider a request because of too great an overlap of associations. The Commission notes that in those instances it might be necessary for the school committee to invoke the Rule of Necessity, which would permit one or more of the members to participate in a vote notwithstanding their conflict of interest. Also, the school committee could consider alternative means such as ceding responsibility for usage decisions, which are ministerial in nature, to an administrator at the school or establishing written guidelines that would control decisions about the use of school property without the need for the school committee to exercise discretion on a case-by-case basis.

Keywords

Non-profit Boards

Business Associate

Rule of Necessity