Advisory Opinion No. 98-43

Re: Town of East Greenwich

A. QUESTION PRESENTED

The East Greenwich Town Solicitor requests an advisory opinion on behalf of the Petitioners, East Greenwich Town Councilors, municipal elected positions, as to whether two councilors, who also are members of American Legion Post 15, may participate and vote on the subdivision of property owned by American Legion Post 15 where their participation is necessary to establish a quorum.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Petitioners, East Greenwich Town Councilors, municipal elected positions, who also are members of American Legion Post 15, may participate and vote on the subdivision of property owned by American Legion Post 15 pursuant to the Rule of Necessity exception where their participation is necessary to establish a quorum. However, the councilor selected to participate should be the individual whose interest would be affected least by his participation in the matter.

C. DISCUSSION

1. Facts

The Petitioner advises that a matter involving the subdivision of property owned by American Legion Post 15 is scheduled to come before the East Greenwich Town Council. If the Council, and subsequently the Zoning Board, approves the subdivision, the Legion intends to sell one of the lots to pay off a portion of its debt. The Council consists of five members, two of whom are members of Post 15. Under the Home Rule Charter, three councilors constitute a quorum. The Petitioner represents that, in the event councilors who also are Legion members recuse themselves from the proceedings, the Council will not have a quorum due to the recent disability of a disinterested councilor. The Petitioner, on behalf of the Council, requests an advisory opinion as to whether the two Legion members may participate in the proceedings, enabling the quorum requirement to be met.

2. Analysis

Under the Code of Ethics, the councilors 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). Here, the sale of Legion property and subsequent payment of its debt will yield a financial benefit to Post 15. Presumably, that benefit also may flow to its individual members. Although any benefit accruing to the interested councilors may be relatively small, such as in the form of reduced membership dues, its aggregate effect on themselves and their business associates, the members of Post 15, would constitute a substantial conflict of interest prohibiting their participation in the matter.

In A.O. 92-1, this Commission recognized a "Rule of Necessity" exception for situations where recusals inhibited governmental process. In that instance, 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. We concluded that one affected member should 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 the Elks would least likely influence his or her decision. By operation of this “Rule of Necessity,” the governmental body would be freed to conduct its business with minimal disruption and opportunity for improper influence.

In the instant case, recusals combined with the disability of a third, disinterested councilor, would prevent the Council from taking any action on the subdivision of the property owned by the Legion. Consistent with its past advisory opinions, the Commission concludes that where a majority of councilors must recuse themselves based upon their membership in Post 15, an affected councilor necessary to establish a quorum may participate in the Council’s decision.

To fulfill the quorum requirement, the affected councilors should decide between themselves which individual’s interest would be affected least by his participation. For example, as between an officer and non-officer member of Post 15, the non-officer member should be the one to participate. Additionally, the participating councilor should make public disclosure of his relationship with Post 15, and, notwithstanding that relationship, the basis upon which he believes he can objectively participate and vote in the matter at issue, all prior to his participation and voting in connection with same.

Code Citations:

36-14-5(a)

36-14-7(a)

36-14-6

Related Advisory Opinions:

97-55

96-65

93-31

92-1

Keywords:

Recusal

Rule of necessity