Advisory Opinion No. 98-134

Re: Hannibal F. Costa

QUESTION PRESENTED

The Petitioner, the Tiverton Town Clerk, a municipal elected position, requests an advisory opinion as to whether he may, in his capacity as Town Administrator Pro Tem, a municipal appointed position, review a complaint alleging a charter violation filed against a majority of Town Councilors given that the complainant also has lodged complaints against the Town Clerk and the Town Administrator for Open Meetings violations.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Tiverton Town Clerk, a municipal elected position, may not review a complaint alleging a charter violation filed against a majority of Town Councilors in his capacity as the Town Administrator Pro Tem given that the complainant also has filed a complaint against him for Open Meetings violations. Under the Code of Ethics, a public official may not take any action that is in substantial conflict with his/her public duties. Here, the Charter for the Town of Tiverton provides that the Town Administrator should determine whether a complaint alleging violations of the Charter will be filed in Municipal Court. For the Petitioner to do so in this instance would place him in the position of passing judgment on a matter affecting a complainant who, in a separate matter, has alleged violations of the law by the Petitioner. Those allegations have not been resolved but, if substantiated, could carry with them the imposition of a penalty, including a fine. While we appreciate the representations of the Petitioner that he believes he would act fairly and impartially notwithstanding the complainants pending allegations against him, the Code of Ethics requires him to recuse in matters where he has a substantial conflict of interest. Therefore, the Petitioner should recuse from participating in the review of the complaint alleging charter violations in accordance with Section 6 of the Code.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-7

Related Advisory Opinions:

93-4

93-56

Keywords:

Litigation