Advisory Opinion No. 97-29

Richard A. Cunningham, Jr.

A. QUESTION PRESENTED

The petitioner, a newly-elected Chair of the North Kingstown School Committee, a municipal elected position, requests an advisory opinion as to whether he may accept an additional $100 in remuneration for serving as Chair given that 1) both he and his spouse, also a member of the North Kingstown School Committee, participated in the consideration and vote for Chair of the School Committee, and 2) both votes were decisive in his winning election to the Chair.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the petitioner, Chair of the North Kingstown School Committee, may accept the additional $100 for serving as Chair given that his spouse participated in the vote for Chair. Although the Code of Ethics provides that public officials may not have an interest in substantial conflict with their duty, the acceptance of the additional remuneration for the position of Chair does not rise to this level under the current circumstances. In this matter, the compensation of the Chair is set by Charter and not proposed or voted upon by the School Committee. The School Committee itself is elected by the people who must then chose who the next Chair will be, not his/her compensation. Given that the compensation is set by charter, the fact that the petitioner has now become Chair by virtue of a vote which included both him and his spouse does not transform his candidacy into a substantial conflict of interest or use of position for private gain.

C. DISCUSSION

1. Facts

The petitioner has been an elected member of the North Kingstown School Committee. Recently, his spouse was also elected to the North Kingstown School Committee. In a recent advisory opinion, the petitioner's spouse was advised that she could vote for the Chair of the School Committee, for which her husband was a candidate. This opinion was, in part, based on the petitioner's representation that at least for purposes of the election for Chair, he would decline the increase in stipend provided for the Chair by City Charter. The petitioner now requests an advisory opinion as to whether he may accept the additional $100 stipend now that he is Chair of the North Kingstown School Committee.

2. Analysis

The Code of Ethics provides that public officials should not have any interest, financial or otherwise, which is in substantial conflict with the proper discharge of his or her duties in the public interest. Section 7(a) provides that a substantial conflict with the proper discharge of his or her duties occurs if he or she has reason to believe or expect that he or she or any person within his or her family will derive a direct monetary gain by reason of his or her official activity. Additionally, the Code of Ethics prohibits public officials from using their public office for private gain or advantage, for themselves as well as for business associates and family members. Typically, questions of conflicts of interest arise when a public official or employees's private interests intersect with his or her public responsibilities. Here the situation involves two spouses, both duly elected representatives of the North Kingstown School Committee.

Here, the Charter provides that the Chair will receive a monthly stipend of $300 whereas a member will receive $200 per month. If petitioner accepts the additional $100 provided by the Charter for the Chair, he may be in violation of Sections 5(a) and 7(a) of the Code given that he and his spouse participated in the vote for Chair and he will receive a direct monetary gain by reason of their official activity.

However, as a matter of routine, in City and Town Councils, School Committees, and other public bodies at the state and municipal level, elected and appointed officials participate and vote in elections when they themselves are seeking the Chair of the particular body. Such participation is an exercise of their representative vote on behalf of their constituents regarding a public matter (i.e., the Chair of the body) rather than a private matter. The fact that one's elevation to Chair carries with it additional remuneration, as decided by the voters is part of the charter and required no separate action by the petitioner.

It is the opinion of the Rhode Island Ethics Commission that the petitioner, Chair of the North Kingstown School Committee, may accept the additional $100 for serving as Chair notwithstanding that he and his spouse participated in the vote for Chair. Although the Code of Ethics provides that public officials may not have an interest in substantial conflict with their duty, the acceptance of the additional remuneration for the position of Chair does not rise to this level under the current circumstances. In this matter, the compensation of the Chair is set by Charter and not proposed or voted upon by the School Committee. The School Committee itself is elected by the people who must then chose who the next Chair will be, not his/her compensation. Given that the compensation is set by charter, the fact that the petitioner has now become Chair by virtue of a vote which included both him and his spouse does not transform his candidacy into a substantial conflict of interest or use of position for private gain.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

GCA-1

Keywords:

nepotism