Advisory Opinion No. 96-65

Re: Maureen H. Aveno

A. QUESTION PRESENTED

The Petitioner, on behalf of the Rhode Island Workers' Compensation Court Medical Advisory Board, state appointed positions, requests an advisory opinion as to whether certain affected members may participate in the consideration of a particular preferred provider network (PPN) program if more than a majority of its members are required to recuse themselves from that consideration pursuant to A.O. 96-33 given the "Rule of Necessity" exception.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that where a majority of the state appointed members of the Workers' Compensation Court Medical Advisory Board must recuse themselves from consideration of a preferred provider network on the basis of A.O. 96-33, pursuant to the "Rule of Necessity" exception, the number of affected members necessary to establish a majority/quorum may participate in the Board's decisions regarding the PPN provided that the Board establishes a system or process to ensure, if possible, that the member(s) selected to fulfill the necessary quorum is/are the individual(s) whose interest will be least affected by the PPN at issue.

C. DISCUSSION

1. Facts

On May 14, 1996, the Commission issued an opinion to the Petitioner, the Administrator to the Board, advising the Board that the Code of Ethics prohibits a member from considering whether to approve a PPN if that member, a business associate, or his or her employer or family member (if any) appeared on the PPN since his or her participation would trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 7(a). See Exhibit A (A.O. 96-33). In this opinion, the Commission also advised the Board that, if the situation develops where more than a majority of the Board is required to recuse themselves from the consideration of a PPN (6 of the 11 members), it may request an exception under the "Rule of Necessity."

By a letter dated May 17, 1996, the Petitioner advised the Ethics Commission that at a meeting on May 14, 1996, six different members of the Board, more than a majority, were required to recuse themselves from consideration of six submitted PPNs. As a result, the Board failed to consider or approve the six PPNs. The Petitioner now seeks guidance as to whether the "Rule of Necessity" exception would permit the Board to consider the PPNs.

2. Analysis

Under the Code of Ethics, the members of the Board may not participate in any matter in which they have an interest, financial or otherwise, which is in substantial conflict with the proper discharge of their duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). Pursuant to R.I. Gen. Laws § 36-14-5(d), the members are also prohibited from using their public position or confidential information received through their position to obtain financial gain, other than that provided by law, for themselves, a business associate, or any business in which the member is employed or which the member represents.

In A.O. 92-1, this Commission recognized a "Rule of Necessity" exception for situations where recusals inhibited governmental process. In that opinion, we concluded that, where three members of the Smithfield Zoning Board of Review were required to recuse themselves from the consideration of a petition submitted by the Elks Lodge thereby preventing the Board from considering a matter at issue for lack of a necessary quorum established by the Supreme Court, one affected member could participate and/or vote on the matter at issue provided that, prior to the consideration of the petition, the three affected members conferred among themselves to select the member whose relationship with Elks would least likely influence his or her decision.

Here, at a recent meeting of the Board, more than a majority of the members recused themselves from the consideration of six submitted PPNs on the basis of our advisory previously issued (A.O. 96-33), thereby preventing the Board from taking any action as to such PPNs. After considering the ramifications of our previous opinion on the Board's ability to process PPNs, we now conclude that, where a majority of the members of the Board must recuse themselves from consideration a PPN on the basis of A.O. 96-33, pursuant to the "Rule of Necessity" exception, the number of affected members necessary to establish a majority/quorum may participate in the Board's decisions regarding the PPN. (For example, where six members of the eleven member Board recuse themselves, one of the six affected members may participate to establish the necessary quorum.) For example, where six members of the eleven member Board recuse themselves, one of the six affected members may participate to establish the necessary quorum. To select the member(s) to fulfill the necessary quorum, it is incumbent upon the Board to develop a system or process, such as that described in A.O. 92-1, to ensure, if possible, that the member(s) selected is/are the individual(s) whose interest will be least affected by the PPN at issue.

Code Citations:

36-14-5(a)

36-14-5(d)

Related Advisory Opinions:

96-33

92-1

Keywords:

private employment

recusal

rule of necessity

36-14-7(a)