Advisory Opinion No. 99-142

Re: Betty L. Hubbard

QUESTION PRESENTED

The Chair of the Jamestown Planning Commission, a municipal appointed position, requests an advisory opinion as to whether she may participate in a decision about a proposed subdivision when the matter is being presented by her spouse, unpaid, on behalf of a third person.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Chair of the Jamestown Planning Commission, a municipal appointed position, may not participate in a decision about a proposed subdivision when the matter is being presented by her spouse, unpaid, on behalf of a third person even though he would not be affected financially by any such decision.

The Code of Ethics provides that a public official shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction which is in substantial conflict with the proper discharge of his/her duties in the public interest. A substantial conflict of interest occurs if the public official has reason to believe or expect that (s)he or any family member or business associate, or any business by which (s)he is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of her/his official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a). Under Commission Regulation 5002, Additional Circumstances Warranting Recusal, a public official must recuse if her/his spouse, dependent child, employer, or counsel for her/his spouse, dependent child, or business associate, appears before her /his board or agency.

The Commission has issued numerous advisory opinions advising public officials to recuse when matters financially affecting their spouse appeared before them since participation would be a substantial conflict of interest. See e.g., A.O. 99-36, A.O. 98-172, A.O. 90-33. Additionally, the Commission has applied Regulation 5002 to public officials in circumstances where their employers or business associates appear before their board or agency. See e.g., A.O. 96-46, A.O. 95-104, A.O. 97-24.

Here, the petitioner represents that her spouse is appearing on another party’s behalf due to his expertise in land preservation issues. Although her spouse will not receive a financial benefit due to his representation, he is, nonetheless, appearing before the petitioner. Given the plain language of the regulation, the petitioner must recuse in accordance with Section 6 of the Code of Ethics by filing a recusal form with the Planning Commission and sending a copy to the Ethics Commission.

Code Citations:

36-14-5(a)
56-14-7(a)
36-14-5002

Related Advisory Opinions:

99-36
99-4
98-172
98-162
97-118
97-65
97-36
97-35
97-24
97-10
96-117
96-109
96-86
96-46
96-32
96-16
95-104
95-71
95-45
94-29
90-33
87-5E

Keywords:

Nepotism