Advisory Opinion No. 99-79

Re: Susan T. DeRita

QUESTION PRESENTED

The petitioner, the Vice Chairperson of the Providence School Board, a municipal appointed position, who serves as an ex-officio member of the Board of Contract and Supply for the City of Providence, requests an advisory opinion as to whether the Code of Ethics requires her to take further action beyond recusing herself from participation in the approval of contracts involving Gem Plumbing & Heating Co., Inc., her spouse’s employer.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not bar the petitioner, the Vice Chairperson of the Providence School Board, a municipal appointed position, from participating and/or voting upon contracts involving Gem Heating & Plumbing Co., Inc., (Gem) notwithstanding the fact that her spouse is employed by Gem, given that 1) her relationship with Gem is too remote to implicate the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(d); and 2) there is no evidence that a municipal contract award would impact her spouse’s employment.

As Vice Chairperson of the Providence School Board, the petitioner votes on all municipal contract awards as an ex-officio member of the Board of Contract and Supply for the City of Providence. She indicates that her spouse is employed as an electrician at Gem Plumbing & Heating Co., Inc., and that he is not involved in the preparation of and/or submission of bids for Gem. She represents that he would not be impacted financially by a contract award to Gem since he is a salaried employee who neither receives overtime compensation nor has a financial interest in the company. Additionally, the type of electrical control work he performs for Gem only would be required in approximately two percent of its contracts.

Under the Code of Ethics, a public official 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). An official has an interest in substantial conflict with her official duties if it is likely that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, a family member, or her employer. See R.I. Gen. Laws § 36-14-7(a). Also, a public official may not use her public office or confidential information received through her office to obtain financial gain, other than that provided by law, for herself, a family member, or an employer. See R.I. Gen. Laws § 36-14-5(d). Finally, Commission Regulation 36-14-5002 requires an official to recuse herself whenever her employer or the interest of her employer come before her Board.

After considering the relevant provisions of the Code of Ethics and past advisory opinions, the Commission concludes that the petitioner does not have an inherent conflict of interest that would preclude her participation in the award of a municipal contract to Gem Heating & Plumbing. Here, any contract would be awarded to the petitioner’s spouse’s employer. The relevant provisions of the Code, namely sections 5(a) and 5(d) and Commission Regulation 5002, do not require recusal for matters involving a spouse’s employer.

Further, there is no evidence that the award of a contract to Gem would impact her spouse’s employment, particularly because he is a salaried employee who does not receive overtime compensation. The Code does not generally preclude a public official from participating in matters affecting a spouse’s employer unless there is evidence that the matter under consideration would affect the family member. See R.I. Gen. Laws § 36-14-7(a); see also A.O. 99-28 (concluding that a Westerly Zoning Board of Review member could participate in the review of the Bess Eaton Donut and Flour Company’s application for a special use permit to construct a drive-thru in two new locations since his relationship with the applicant is too remote to implicate the Code’s prohibitions and there is no evidence that the construction of the drive-thrus would impact his spouse’s employment in the applicant’s bakery department); and A.O. 98-45 (advising the Administrator of the Rhode Island Division of Public Utilities and Carriers that he could participate in matters that relate to the telecommunications industry or Bell Atlantic despite the fact this his spouse was employed by Bell Atlantic since there was no evidence that the matter would impact his wife’s employment interest).

Finally, whether the petitioner’s participation in matters involving Gem results in an appearance of impropriety is not a matter for the Ethics Commission to decide. When enacting the Code of Ethics, the General Assembly included as one of its legislative purposes the elimination of appearances of impropriety. The legislature did not, however, make the appearance of impropriety a violation of the law. Therefore, while this Commission can recommend to the petitioner that she should publicly disclose the nature of her relationship with Gem, and the basis upon which she intends to participate (or not), whether an act or failure to act creates an appearance of impropriety must be determined by public officials themselves, by public bodies, and, ultimately, by the public at large.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-6
36-14-7(a)
36-14-5002

Related Advisory Opinions:

99-28
98-45
97-83
96-105
96-6
95-12
91-34

Keywords:

Contracts
Family: Financial Interest
Family: Private Employment
Recusal