Advisory Opinion No. 98-83

Re: Donald Dunwoody

A. QUESTION PRESENTED

The Petitioner, a candidate for the School Committee for the Town of East Greenwich, a municipal elected position, requests an advisory opinion as to whether he may serve in that position if through a lawsuit brought by him against the Town he regains his position as a varsity coach at East Greenwich High School.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a candidate for the East Greenwich School Committee, a municipal elected position, would not violate the Code of Ethics if, through a lawsuit brought by him against the Town, he regains his position as a varsity coach at East Greenwich High School. The Petitioner is advised, however, that as a member of the School Committee the law would prohibit him from participating in any matter that directly affected him or his interests as a coach at the high school. Also, while the Petitioner would regain his position as a varsity coach through operation of law, any future appointment or reappointment to the position presumably would be made or approved by the School Committee. If he wins election to a position on the School Committee, the Petitioner may not appear before that body to seek or accept future employment or reappointment to a paid position with the School Department. R.I. Gen. Laws § 36-14-5(e); Commission Regulation 5006. Therefore, the Petitioner may seek election to the School Committee and, if elected, accept the varsity coaching position if his lawsuit is successful. He may be barred, however, from accepting a reappointment to that position because of the appointing and/or supervisory role of the School Committee regarding high school coaches. Such prohibition would extend for one year after his tenure as a member of the School Committee ended.

C. DISCUSSION

1. Facts

The Petitioner is suing the Town of East Greenwich to regain his position as a varsity coach at East Greenwich High School. He anticipates that the litigation may be resolved in August, 1998. The Petitioner also is a candidate for election to the East Greenwich School Committee. If successful in both the election and his lawsuit, he would be a member of the School Committee when he wins reinstatement to the varsity coaching position.

2. Analysis

Under the Code of Ethics, a public official may not participate in any matter in which he 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 official duties if it is likely that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of his or her activity, to the official, a family member, or a business associate. See R.I. Gen. Laws § 36-14-7(a). Also, Section 5(e) of the Code prohibits a public official from representing himself before a municipal agency of which he is a member. R.I. Gen. Laws § 36-14-5(e)(1). Finally, Commission Regulation 5006 prohibits a public official from accepting an appointment by an agency of which he is a member to any position which carries with it any financial benefit or remuneration, until the expiration of one year after termination of his membership with such agency. A similar one year revolving door prohibition attaches to the Section 5(e) prohibition.

Previously, we have addressed whether the Code of Ethics prohibited a municipal or school department employee from serving on a school committee or town council. In A.O. 95-72, we advised a candidate for the Newport School Committee who was employed by the Newport School Department as a Plumbing Apprentice Instructor that he would not violate the Code of Ethics if he simultaneously served in both positions provided that he did not participate in matters that directly affected him or his interests as an employee of the School Department. Also, in A.O. 95-44, we concluded that an electrician employed by the Newport School Department would not violate the Code of Ethics if he simultaneously served on the Newport City Council provided that he did not participate in matters that directly affected him or his interests as an employee of the School Department. See also A.O. 93-86 (holding that an employee of the Newport School Department was not precluded from running for the Newport City Council provided that she exercised notice and recusal from matters that directly affected her, her interest as employee of the School Department, or the school budget).

After considering the relevant provisions of the Code and previous advisory opinions, we conclude that the Petitioner will not violate the Code of Ethics if, as a member of the School Committee, he gains and accepts reinstatement to his position as a varsity coach at East Greenwich High School. Important in reaching that conclusion is the fact that the Petitioner would have retained his coaching position by operation of law, not through any action by the School Committee. If and when he regains his coaching position, however, R.I. Gen. Laws § 36-14-5(a) prohibits him from participating as a member of the School Committee in any matter that directly affects him or his interests as a high school coach. Also, if he becomes a coach at the high school he may participate in the School Committee’s overall review of the School Department’s budget, but he may not participate in the consideration of any specific budget items that affect the high school athletics’ program or coaches' compensation. See A.O. 95-72 (advising a candidate for the Newport School Committee who also taught adult education courses that, while general participation in the budget process was acceptable, he could not vote on or discuss items that affected payments for adult education courses, such as the Plumbing Apprentice Instructor Program with which he was associated, or personnel issues affecting him as an employee of the Newport School Department).

The Petitioner is further advised that, if elected to the School Committee, under the provisions of R.I. Gen. Laws § 36-14-5(e)(1) and Commission Regulation 5006, he may not accept reappointment as a coach or appointment to another paid position from the School Committee until the expiration of one year from the date of his termination with the School Committee. See A.O. 97-17 (concluding that, although a recently elected member of the Warren Town Council could continue to serve as a compensated member of the Board of Directors of the Bristol County Water Authority since he was appointed to this position before he became a member of the Town Council, he could not seek or accept reappointment to that position while he remained a member of the Town Council and for a period of one year after he terminated his relationship with the Town Council); A.O. 97-26 (concluding that a former Warwick City Councilor could not accept an appointment to a position that was subject to confirmation by the City Council prior to the expiration of one year from the date she left office as a City Councilor). The Petitioner, however, may accept reappointment as a coach or appointment to another position if he receives no compensation or benefits, either because it is a volunteer position or because he agrees to waive the receipt of such. See A.O. 96-35 (advising a member of the North Kingstown School Committee that he could accept appointment as a volunteer baseball coach for the School Department since he would serve without compensation).

Finally, the Petitioner is advised that this opinion solely addresses whether the Code of Ethics prohibits him, as a potential employee of the School Department, from seeking or holding office as a member of the School Committee. This opinion does not address whether any other statutes, rulings or policies, specifically from the State Board of Elections, the Attorney General's Office, or the Town of East Greenwich prohibits such simultaneous service.

Code Citations:

36-14-5(a)

36-14-5(e)

36-14-7(a)

36-14-5006

Related Advisory Opinions:

98-37

97-26

97-17

96-119

96-102

96-82

96-35

95-72

95-44

93-86

Keywords:

Candidate

Dual public roles

Prospective employment