Advisory Opinion No. 97-128

Carlo E. Pisaturo, Jr


The Petitioner, Warwick City Councilor, a municipal elected position, requests an advisory opinion on behalf of the members of the City Council for the City of Warwick as to whether they may accept expense reimbursement payments of $100 per month when the payment is made possible through the resumption of a prior practice of funding the annual budget and when the Budget with the funding was passed pursuant to the Mayor's veto and not by an affirmative vote of the City Council.


It is the opinion of the Rhode Island Ethics Commission that the members of the City Council for the City of Warwick, municipal elected positions, may not accept the expense reimbursement payments of $100 per month because they directly participated in the discussions relating to an increase in benefits to themselves, even though the funding for the expense reimbursement resulted ultimately from the Mayor's veto and not from an affirmative vote of the City Council. The fact that prior City Councils had initiated this practice does not alter the conclusion. Unless prohibited from increasing the expense reimbursements by simply voting on a budget which funds the payment of these expenses, the City Council members would have unbridled authority to increase their personal benefits. Furthermore, to permit the Council members to accept the reimbursable expenses under the specific circumstances of this case would allow cities and towns to circumvent the Code of Ethics by passing a budget with funding by mayoral veto. To alleviate any appearance of impropriety and to act consistent with a long line of previous advisory opinions issued by this Commission, it is recommended that the City Council pass a resolution authorizing payment of the expense reimbursements to take effect at the start of the next term in January, 1999.


1. Facts

Starting in 1964, the City Council for the City of Warwick began paying City Council members, in addition to a salary, a fixed amount per month for expense reimbursements. The City Council never passed an ordinance or resolution authorizing the expense reimbursement to the Council members. The reimbursement derives from an appropriation of funds in the annual budget. Over the years, prior City Council members had increased the amount of the monthly reimbursement from $25 to $100 by simply approving a budget with additional funding for the expense reimbursements. In July, 1992, and in each year subsequent until 1997, the City Council did not include funding for the expense reimbursement in the annual budget.

In July, 1997, the Mayor proposed an annual Budget which included funding for expense reimbursement at the rate of $100 per month for each Council member. After the Council members discussed and considered the issue, the City Council voted to approve an amended budget which did not include funding for the expense reimbursement. The Mayor vetoed the amended budget and reinstated the budget with the funding which the Mayor had proposed. The City Council failed to override the veto.

2. Analysis

The Rhode Island Code of Ethics holds all public officials to the "highest standards of ethical conduct" and requires that public officials avoid even the "appearance of impropriety," R.I. Gen. Laws § 36-14-1. Under the Code, the members of the City Council may not participate in any matters in which they have an interest, financial or otherwise, which is in substantial conflict with the proper discharge of their duties.R.I. Gen. Laws § 36-14-5(a). Further, they may not use their public office to obtain personal financial gain for themselves. R.I. Gen. Laws §§ 36-14-5(d) and 36-14-7(a).

In this case, the Commission must address whether the City Council members may financially benefit from their direct participation in matters which resulted in financial gain in the form of expense reimbursements even though the practice of reimbursing City Council members on a monthly basis for expenses by funding the Budget was initiated by former Councils and even though the funding resulted from the Mayor's veto and not by an affirmative vote of the City Council members,

General Commission Advisory Opinion No. 6 relates to salary increases and other financial benefits for public officials. In that Opinion, the Commission noted that public officials must exercise care "in every situation where the individual's action might eventually lead to financial gain for him or her, a spouse, dependent child, or business associate." The Commission concluded that a public official would violate the Code of Ethics by participating in or taking action that would affect the public officials salary or benefits when the public official had reason to believe that he or she might receive direct financial gain as the result of the action. For example, the Commission determined that ethics violations would occur when a public official directly votes him or herself a raise (i.e., when a City Council votes to increase the compensation of all of the present members); or when a City Council passes a resolution seeking legislative change to the Town Charter to provide each Council member with a fixed monthly, payment for reimbursement of expenses, (In that case, the Rhode Island Supreme Court affirmed the Commission's decision that the Council members violated the Code of Ethics even though the Council did not actually vote the increased benefits. Celona v. R.I. Ethics Commission, 544 A.2d 582 (R.I. 1988). The Court noted that the Council had initiated and participated in the increase in benefits) or when Council members participate in discussions regarding, or vote on, a budget at an annual town meeting when the budget includes funding for an increase in the Council members' salaries or benefits.

Upon consideration of the Petitioner's request and upon the documents submitted, we conclude that the Code of Ethics does not permit the City Council members for the City of Warwick to benefit financially by accepting the expense reimbursement under these circumstances. Although funding for the expense reimbursement was provided for, not by direct affirmative vote of the City Council, but as the result of the Mayor's veto, the City Council still participated in the discussions and actions relating to this funding.

This conclusion is supported by General Commission Advisory Opinion No. 6 and by previous advisory opinions issued that are consistent with the general advisory; e.g., A.O. 95-52 (Code prohibits Town Council members' participation in discussion or votes regarding a stipend to be paid to the council members to compensate for their administrative duties). The Commission notes that the best alternative for the City Council under these circumstances would be to consider enacting a resolution relating to this matter to take effect at the start of the next term in January, 1999. By doing so the City Council would address the expense reimbursement issue but not have their action take effect until after a critical intervening event; i.e., the next scheduled election.

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