Advisory Opinion No. 99-86

Re: Barbara Tufts

QUESTION PRESENTED

The petitioner, an East Greenwich Town Councilor, a municipal elected position, requests an advisory opinion as to whether she may vote and/or otherwise participate on matters regarding the East Greenwich School Department's budget given that she is the operator of a children's center that provides services to special needs children who are 3 and 4 years of age, including some whose tuition is paid by the East Greenwich School Department pursuant to the State's special education program.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a East Greenwich Town Councilor, a municipal elected position may participate and vote on matters involving the East Greenwich School Department's budget. The petitioner advises that she is an elected member of the East Greenwich Town Council. In her private life she operates the East Greenwich Cooperative Children's Center ("the Center"). The Center provides services to special needs children who are 3 or 4 years of age. Among those who attend the school are children whose tuition is paid by the East Greenwich School Department pursuant to the State's special education program.

The petitioner further advises that the budgeting process for the Town of East Greenwich begins with the School Department submitting a proposed budget to the Town Manager. The manager reviews and may revise the budget, after which it is submitted to the Town Council along with proposed budgets for all other Town departments. The Council then reviews the budget, makes any revisions it deems appropriate, convenes a public hearing on its recommendations, and then forwards its recommended budget to the Financial Town Meeting where it may be further revised. Ultimate approval authority for the budget rests with the Town Meeting.

The School Department budget includes line items for, among other things, special education. Most special education requirements are mandated by the State. No line items exist in the budget that reference the petitioner's Center, nor are there specific allocations for funding that are targeted for receipt by the Center. Once the Town Meeting approves the overall budget all substantive authority over the budget, including the designation of special needs students, placement decisions regarding those students, and other related matters, rests with the School Department. The Town Council plays no role.

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 East Greenwich School Department budget that may come before the Town Council. The petitioner's involvement with the budget process is sufficiently removed from the decision-making process that would result in a student being placed in the East Greenwich Cooperative Children's Center so as not to implicate provisions of the Code of Ethics. In fact, the Town Council has no role in the process, which is why the strict prohibitions set out in subsection 5(e) are not applicable here; i.e., there could be no opportunity for the petitioner to appear before the Town Council regarding the placement of students at the Center. In addition, the funding decisions regarding special education are driven in large part by State mandates, over which the Town itself has little control.

While not specifically inquired about in the advisory opinion request, the petitioner also should be mindful of Section 5(h) of the Code. Section 5(h) 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; provided, however, that contracts for professional services which have been customarily awarded without competitive bidding shall not be subject to competitive bidding if awarded through a process of public notice and disclosure of financial details."

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 business dealings with the School Department appear to fall within this prohibition and, therefore, any contracting should comply with the dictates of subsection 5(h).

Finally, the petitioner inquires as to whether the Code of Ethics impacts her status and/or her ability to vote as an elector of the Town at the Financial Town Meeting. It does not. In fact, Commission Regulation 36-14-7003, Public forum exceptions, specifically provides that any public official or employee may express his or her viewpoints in a public forum, by vote, speech or otherwise, on any matter. The Commission has reaffirmed this principle over the years, noting that the only limitation is that the involvement of the official must be as a member of the public, and the official must not be afforded greater or better access to the means of public expression by virtue of his or her status as a public official or employee.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-5(e)

36-14-5(h)

36-14-6

36-14-7(a)

36-14-7003

Related Advisory Opinions:

99-07

99-35

99-57

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:

Contracts

Family: Public employment

Property Interest