Advisory Opinion No. 96-45

Re: Vincent Marcantonio & John Marcantonio

Question Presented

The Solicitor for the Town of North Smithfield requests an advisory opinion regarding a family relationship between an appointed member of the town's Sewer Commission and an elected councilor serving on the Town Council. Specifically, he asks whether there is an inherent conflict of interest or whether voting on contracts or budgets may give rise to a conflict.

Summary

The Commission has taken a strong stance against nepotism (See General Commission Advisory 1, issued August 18, 1988) and encourages that care be taken by public officials and employees to avoid both the appearance of impropriety and substantial conflicts with the proper discharge of their duties in the public interest.

The first issue presented is whether a conflict exists simply because of a family relationship between an appointed member of the North Smithfield Sewer Commission and his brother, an elected councilor on the North Smithfield Town Council. Since the brothers were not involved in obtaining their sibling's positions with the Sewer Commission and Town Council (the Commissioner was appointed by a previous Town Council and the Councilor was elected), the fact that the brothers are on these Boards does not present a conflict. Similarly, participating in the business of their respective public body does not present a conflict unless other factors are present.

The second issue raised is whether a conflict exists where the Sewer Commission recommends to the Council that bids be accepted or rejected. Without any other fact involved (e.g. that the bid involved a business associate or property owned or adjacent to a brother), no conflict is apparent. The same reasoning applies to the Town Council's approval of the Sewer Commission's budget which contains no provisions for remuneration for the Commission members. Assuming no benefit or detriment is derived by either brother or their associates or family members through the budget, the fact that the councilor votes on the Sewer Commission's budget presents no inherent conflict. See R.I. Gen. Laws § 36-14-7.

Response

The Commission has taken a strong stance against nepotism (See General Commission Advisory 1, issued August 18, 1988) and encourages care be taken by public officials and employees to avoid the appearance of impropriety and substantial conflicts with the proper discharge of their duties in the public interest. This request for an advisory opinion was submitted by the Town Solicitor of North Smithfield on behalf of Vincent Marcantonio, Jr. and John Marcantonio requesting advice as to whether the brothers serving in municipal positions present a conflict of interest within the boundaries of the Code of Ethics. Relevant to the discussion is that Vincent Marcantonio was appointed to the Sewer Commission before John Marcantonio was elected to the Town Council. Additionally, the Sewer Commission is composed of five members who handle the construction, operation and maintenance of the Town's sewer system. The Town Council approves all Sewer Commission contracts and funding and acts as an appeal board for any decision made by the Sewer Commission.

The first issue presented is whether a conflict exists simply by Vincent serving on the Sewer Commission at the same time that his brother John sits on the Town Council. Since the brothers were not involved in obtaining their sibling's positions with the Sewer Commission and Town Council (Vincent was appointed by a previous Town Council and John was elected), the fact that the brothers are on these Boards does not present a conflict. Similarly, participating in the business of their respective public body does not present a conflict unless another fact is present. Such a fact may include a business associate appearing before the Sewer Commission. Participating in such a matter may not only involve the appearance of impropriety but also present a substantial conflict with the proper discharge of his duties in the public interest for Vincent and subsequently, with the Town Council's review, for John (See R.I. Gen. Laws §§ 36-14-1, 36-14-5(a)&(b), and 36-14-7). Rather than a general prohibition, however, these types of situations should be evaluated on a case-by-case basis.

The second issue raised is whether a conflict exists where the Sewer Commission recommends to the Council that bids be accepted or rejected. Again, without any other fact involved (i.e. that the bid involved a business associate or property owned or adjacent to a brother), no conflict is apparent. The same reasoning applies to the Town Council's approval of the Sewer Commission's budget which contains no provisions for remuneration. Assuming no benefit or detriment is derived by either brother or their associates or family members through the budget, the fact that

Vincent votes on the Sewer Commission's budget presents no inherent conflict.

Finally, the brothers request scenarios where a conflict would exist. The Commission cannot postulate every circumstance where a Code of Ethics violation may occur and advises the Petitioners to consult the Code of Ethics and, when necessary, this Commission for guidance. (See R.I. Gen. Laws §§ 36-14-1, 36-14-5(a),(b),(d) and 36-14-7). In the event any matter comes before Vincent or John Marcantonio that affects his brother or other family member, he should strictly adhere to the notice and recusal section of the Code and/or seek further guidance from this Commission (See R.I. Gen. Laws § 36-14-6).

Code Citations:

36-14-1

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-6

36-14-7

Related Advisory Opinions:

GCA-1

94-56

94-44

93-20

92-60

92-56

92-52

Keywords:

nepotism