Advisory Opinion No. 99-7

Re: Mary Jane DiMaio

QUESTION PRESENTED

The petitioner, a Westerly Town Councilor, a municipal elected position, requests an advisory opinion as to whether she may vote on matters involving 1) the Department of Environmental Management (DEM), given that her daughter-in-law serves as legal counsel to the DEM, and 2) the school budget, given that the she and her spouse lease property to the School Department.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Westerly Town Councilor, a municipal elected position may participate and vote on matters involving the Department of Environmental Management (DEM), provided that such matters do not financially impact her daughter-in-law as legal counsel to the DEM. However, in the event that her daughter-in-law represents the DEM before the Town Council, the petitioner should recuse herself from participation. Further, the petitioner may not participate and vote on the school budget given that any such action will impact the School Department, as to which she is a business associate as defined under the Code of Ethics.

The petitioner advises that her daughter-in-law is employed by the DEM as legal counsel. She further advises that various matters presented by and/or involving the DEM may come before the Town Council for consideration. She indicates that her daughter-in-law’s responsibilities include handling labor relation matters within the DEM and reviewing telecommunication tower issues throughout the state. She also represents that she and her spouse lease property to the School Department on a monthly basis which is used as schoolroom space for the Town’s Excel Program.

Under the Code of Ethics, the petitioner 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 her duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). She 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, a business associate or a family member. See R.I. Gen. Laws § 36-14-5(d). Additionally, under R.I. Gen. Laws § 36-14-5(e), the petitioner may not “represent [herself] before any state or municipal agency of which she… is a member,” for a period of one year after she severs her position with her agency.

The Commission concludes that the petitioner may participate and vote on matters involving the DEM which may come before the Town Council. Based upon the specific duties of her daughter as the DEM’s legal counsel, it is not reasonably foreseeable that the petitioner’s participation in matters concerning the DEM would financially impact her daughter-in-law. However, in the event that her daughter-in-law represents the DEM before the Town Council, the petitioner should recuse herself from participation in such matters.

Section 5(h) of the Code provides that public officials, as well as their relatives and business associates, may not enter into contracts with any state or municipal agency “unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure or all proposals considered and contracts awarded.” R.I. Gen. Laws § 36-14-5(h). The only exceptions to this strict prohibition recognized by the Commission have been for emergencies and isolated purchases of nominal value. See A.O. 97-72, A.O. 98-48, A.O. 98-79. The petitioner’s lease agreement with the School Department falls squarely within this prohibition. Therefore, absent an open and public bidding process, the petitioner and her spouse may not renew their arrangement with the School Department.

Additionally, the prohibitions affecting the petitioner may extend beyond the public bidding requirement. The Commission previously has found that public officials who participate in the bid development process for a public entity place themselves, their family members and their business associates in a privileged position with respect to other bidders. By so doing they contravene the “open and public process” required under the Code. Therefore, if the School Department proceeds with an open and public bidding process, the petitioner may submit a bid only if she has not participated in or otherwise influenced the bid development process. Also, if the petitioner or her spouse bids on the lease, she must recuse herself from any future participation as a Town Council member in matters concerning the lease.

Section 5(e) of the Code prohibits the petitioner from appearing before the Town Council regarding the lease, or matters arising thereunder, for a period of one year after she leaves her office. Therefore, in the event of a breach of the lease or other substantive dispute, she may not appear before the Town Council to represent her interests.

The Commission further concludes that the petitioner should recuse herself from participation and vote on the school budget based upon her business association with the School Department. Here, it is reasonably foreseeable that her participation on school budgetary matters will impact both herself and the School Department, her business associate under the Code of Ethics. The ability to affect the funding available to the School Department for any such leasing arrangement likely would constitute the type of influence prohibited by the Code of Ethics. See A.O. 98-16 (concluding that a Judge should recuse in matters where his tenants and its officers appear before him). Notice of recusal on any of these matters should be filed with both the Town Council and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-2(1)
36-14-2(3)
36-14-5(a)
36-14-5(d)
36-14-5(e)
36-14-6
36-14-7(a)
36-14-5005

Related Advisory Opinions:

98-123
98-112
98-86
98-79
98-50
98-16
97-72
97-66
97-50
97-38
97-35
97-30
95-24
94-46
89-88

Keywords:

Business associate
Contracts
Family: public employment
Property interest