Advisory Opinion No. 95-66 Re: Joseph Smith A. QUESTION PRESENTED Whether the Juvenile Justice Advisory Committee of the Governor's Justice Commission ("Juvenile Justice Committee"), an agency responsible for reviewing all grant applications pertaining to juvenile justice and delinquency prevention programs, has enacted a sufficient recusal policy for situations in which a member of the Juvenile Justice Committee is affiliated with or has an interest in the agency or organization submitting the grant proposal. B. SUMMARY It is the opinion of the Rhode Island Ethics Commission that the Juvenile Justice Committee's recusal policy complies with the Rhode Island Code of Ethics where it precludes members of the Committee who are either employed by an agency/organization or have some other direct interest in an agency/organization that has submitted a grant proposal from participating in the vote or discussions on that matter. C. DISCUSSION 1. Facts The Juvenile Justice Committee, which consists of not less than fifteen and not more than 33 members appointed by the Governor, participates in the review of the State's juvenile justice plan.(1) As part of its duties, the Committee reviews and comments on all submitted juvenile justice and delinquency prevention grant applications. The Juvenile Justice Committee has formulated a policy to address situations where a member of the Committee is either employed by an agency seeking a grant or has some other direct interest in such an organization. Under Article IX of the Committee's Bylaws, as submitted by the requesting party (the Executive Director of the Governor's Justice Commission), the interested Committee member is precluded from participating in and "voting on [the] matter" on which the particular member may be affiliated. The Bylaws also provide that, if requested by one or more of the other Committee members, "the Committee member having a direct interest in the issue shall absent himself/herself from the meeting room during discussion and/or voting relating to that issue." The Juvenile Justice Committee, having recently reorganized, requests an opinion from this Commission concerning whether its recusal policy complies with the requirements and/or procedures set forth in the Code.(2) 2. Analysis Under R.I. Gen. Laws § 36-14-6, a person subject to the Code must meet certain procedural guidelines if, in the discharge of his or her official duties, he or she is called upon to make a decision that will or may reasonably be expected to directly result in an economic benefit to him or herself, a business associate, an employer, or any business which he or she represents.(3) Before taking or refusing to take any action for which he or she may have an interest, the interested official must prepare a written statement sworn to under the penalties for perjury describing the matter requiring action and the nature of the potential conflict. If he or she is member of a legislative body and desires to vote on the interested matter, the statement must detail the reasons why the official believes he or she is able to vote fairly, objectively, and in the public interest. See R.I. Gen. Laws § 36-14-6(1). The interested official must also deliver a copy of this statement to the Commission and, if a member of a legislative body, to the presiding officer of the body (who should record the statement and excuse the member from the matter on which a potential conflict exists) or, if the interested individual is not a member of a legislative body, to his or her superior (who should, if reasonably possible, assign the matter to another person who does not have a conflict). At issue here is whether the Juvenile Justice Committee's recusal policy complies with § 36-14-6 of the Code of Ethics. As detailed above, this policy provides that, in situations where a Committee member has an employment or other direct interest in an agency/organization which has submitted a grant proposal, the member of the Juvenile Justice Committee must recuse him or herself from any discussions, votes or any other type of participation in decisions relating to the agency/organization in which he or she is affiliated. Additionally, if requested by another member of the Committee, the interested Commission member must absent him or herself from the meeting room during discussions and/or voting on that issue. After considering the Committee's recusal policy, the Commission concludes that this policy does not conflict with the applicable provisions set forth in R.I. Gen. Laws § 36-14-6. Members of the Juvenile Justice Committee are advised, however, that in addition to recusing themselves from matters in which they have a conflict of interest, the interested members must also comply with the written filing requirements set forth in R.I. Gen. Laws § 36-14-6; that is, the interested members must prepare a sworn written statement describing the conflict and file a copy of the statement with this Commission and the Juvenile Justice Committee's presiding officer (who should then record the statement and excuse the interested member(s) from votes, deliberations or any other actions on the matter). The interested Commission member must also follow the same recusal and filing procedures for grant applications submitted by the member's spouse, dependent children, business associates, or any entities owned by such individuals. Members of the Committee are further reminded that with respect to any potential conflict situation they may, pursuant to the procedures set forth in Regulation 1024, request an advisory opinion from the Commission and receive specific guidance as to whether and how they should proceed in a matter Footnotes. (1) The Governor appoints members of the Juvenile Justice Committee from the following categories: (1) at least 1 locally elected official representing general purpose local government; (2) representatives of law enforcement and juvenile justice agencies; (3) representatives of public agencies concerned with delinquency prevention or treatment; (4) representatives of private nonprofit organizations; (5) volunteers who work with delinquents or potential delinquents; (6) youth workers involved with programs that are alternatives to incarceration; (7) persons with special experience and competence in addressing problems related to school violence and vandalism; and (8) persons with special experience and competence in addressing problems related to learning disabilities, emotional difficulties, child abuse, neglect, and youth violence. (2) Previously, in July of 1991, after the Governor's Constituent Service received a complaint that some members of the Juvenile Justice Committee had violated the Code by participating in matters in which they were personally affiliated, the Associate Executive Counsel to the Governor, Casby Harrison, III, informed the Committee that its recusal procedure was proper. (3) Regulation 36-14-6001, defines "reasonably foreseeable" as greater than "conceivabl[e]," but need not be certain to occur. Keywords Recusal Private Employment Buiness Associate Nepotism Non-profit Boards Grants