Advisory Opinion No. 97-35

Re: Cheryl Skuba

A. QUESTION PRESENTED

The Petitioner, a member of the Bristol Town Council, a municipal elected position, requests an advisory opinion as to whether she may serve on the Joint Finance Committee of the Bristol-Warren Regional School District (School District) given that a) her husband is a teacher in the School District; b) her husband operates a florist shop which does business with the School District; c) her son is a member of the School Committee for the School District; and d) she has taught adult education classes as an independent contractor for the School District.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Bristol Town Council, a municipal elected position, may serve on the Joint Finance Committee for the Bristol-Warren Regional School District. However, as a member of the Joint Finance Committee, the Petitioner may not participate in any votes or otherwise take official action in situations where she, her spouse, or her son has a direct financial interest in the action. Also, while serving on the Joint Finance Committee, the Petitioner may not accept future teaching positions in the adult education program for the School District since such duality of status would create a substantial conflict with the proper discharge of her duties in the public interest, impair her independence of judgment, and constitute employment from her own board. See R.I. Gen. Laws § § 36-14-5(a), 5(b), and Commission Regulation 5006. Additionally, we advise the Petitioner that, given her husband's business relationship with the School Department for florist services, the Petitioner should not participate or vote on any matter relating to florist services. Finally, we caution the Petitioner that her husband should only provide services to the School Department pursuant to a contract awarded through an open and public bidding process. See R.I. Gen. Laws § 36-14-5(h).

C. DISCUSSION

1. Facts

The Petitioner seeks guidance as to whether she, as a member of the Town Council, may accept appointment to the Joint Finance Committee of the Bristol-Warren Regional School District. This Committee, which is responsible for approving the budget for the School District before the District's financial meeting, is comprised of individuals from the Bristol and Warren Town Councils. (The Petitioner was elected to the Bristol Town Council in November, 1996. On August 22, 1996, the Commission advised the Petitioner, who at that time was a candidate for election, that the Code of Ethics would not prohibit her from serving as a member of the Bristol Town Council notwithstanding the fact that her spouse was employed by the School District and she periodically taught courses in the School District's Continuing Education Program. See AO 96-69.)

The Petitioner advises that both she and members of her family have a number of connections with the School District: she has periodically taught adult continuing education classes as an independent contractor for the School District; her son is a member of the School Committee for the School District; her husband is a teacher in the School District; and her husband operates a florist shop that has provided florist services for the School District.

2. Analysis

At issue in this request is whether the Petitioner, a member of the Bristol Town Council, may accept appointment to the Joint Finance Committee of the Bristol-Warren Regional School District where she periodically teaches in the School District's Continuing Education Program, her spouse is a teacher in the School District, her spouse owns a florist shop which has provided services to the Town, and her son is an elected member of the School District. Under the Code of Ethics, the Petitioner, as a member of the Bristol Town Council or the Joint Finance Committee of the Bristol-Warren Regional School District, may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). An official will have an interest in substantial conflict with his or her official duties if it is likely that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, a family member, or a business associate. See R.I. Gen. Laws § 36-14-7(a). However, an official will not have an interest which is in substantial conflict with his or her public duties if any benefit accrues to the official or a member of the official's family, "as a member of a business, profession, occupation or group, or of any significant and definable class of persons within the business, profession, occupation or group, to no greater extent than any other similarly situated member of the business, profession, occupation or group, or of the significant and definable class of persons within the business, profession, occupation or group." R.I. Gen. Laws § 36-14-7(b).

Also, pursuant to R.I. Gen. Laws § 36-14-5(d), the Petitioner is prohibited from using her public position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself or a family member. Additionally, the Code of Ethics prohibits the Petitioner or any person within her family from entering into a contract with any state or municipal agency unless the contract had been awarded though an open and public process. See R.I. Gen. Laws § 36-14-5(h).

In a number of past advisory opinion requests this Commission has addressed whether an official may serve as either a member of a School Committee or Town Council if a member of that official's family was employed by the School District or Town. As to this issue, we have routinely concluded that the family member's employment relationship would not prohibit the official from serving on a School Committee or Town Council. See e.g., 94-29. Also, based on the exception set forth in R.I. Gen. Laws § 36-14-7(b), we have permitted such officials to participate and vote on budgetary\contract matters affecting employees if the official's family member would not be affected to any greater extent than any other similarly situated employees. See e.g., A.O. 94-29 (holding that the Code of Ethics would not prohibit an individual whose wife was employed by the West Warwick School Department from seeking a position on the West Warwick School Committee, and, if elected, from participating in contract and budgetary issues so long as the matter did not affect his wife individually). Further, we have concluded that the fact that two family members serve on two different boards or agencies within a Town or District would not create a conflict under the Code of Ethics without additional evidence establishing an impermissible conflict. See A.O. 96-45 (concluding that the fact that two brothers served as members of the North Smithfield Sewer Commission and the North Smithfield Town Council would not present a conflict since they had not been involved in assisting their sibling to obtain the respective position with the Sewer Commission or the Town Council).

After examining the relevant provisions of the Code, past advisory opinions, and the Petitioner's and family member's relationships with the School District, we conclude that the Petitioner will not violate the Code of Ethics if she accepts the appointment to the Joint Finance Committee. However, as a member of the Joint Finance Committee, the Committee responsible for approving the School District's budget, the Petitioner may not participate in any matter which specifically affects her husband individually (such as a participation or vote on his job position or his status as an employee) or her son's position with the School Committee.

Also, since the Joint Finance Committee is responsible for setting the overall budget of the School Department, the Petitioner should decline offers of future employment with the Continuing Education Program. Such duality of status would create a substantial conflict with the proper discharge of her duties in the public interest, impair her independence of judgment, and constitute employment from her own board. See R.I. Gen. Laws §§ 36-14-5(a), 5(b), and Commission Regulation 5006. See also A.O. 96-47 (concluding that the Code of Ethics prohibits a member of the Board of Examiners of Electricians from teaching continuing education classes mandated for electricians and journeymen given that the this Board establishes the continuing education program and provides advice and recommendations on licensing); and A.O. 90-69 (concluding that, given that the Providence School Board had authority over school officials, a member could apply for an administrative position within the School Department if that member resigned his position on the Board).

Finally, we advise the Petitioner that, given her husband's business relationship with the School Department, the Petitioner should not participate or vote on any matter relating to florist services. See A.O. 96-7 (opining that a Woonsocket School Committee member could not participate in or vote on any matter relating to a contract with a social service agency for services similar to those which were or could have been provided by the agency employing the Petitioner's spouse as its President/CEO). Also, we caution the Petitioner that her husband should only provide services to the School Department pursuant to a contract awarded through an open and public bidding process. See R.I. Gen. Laws § 36-14-5(h). If the School Department does not adhere to such a process to select vendors for floral services, the Petitioner's husband should not accept business from the School Department.

This opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. This Commission offers no opinion on the effect which any other statute, ordinance, constitutional or charter provision or canons of professional ethics may have on your situation. Under the Code of Ethics advisory opinions are based on the representations made by, or on behalf of, an official and are not adversary, or investigative proceedings.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(h)

36-14-7(a)

36-14-7(b)

36-14-5008

Related Advisory Opinions:

96-7

96-47

96-45

96-80

94-29

92-58

90-69

Keywords:

class exception

contracts

family: financial benefit

family: private employer/ment

family: public employment

nepotism

private employment