Advisory Opinion No. 98-118

Re: Patricia Salley

QUESTION PRESENTED

The Scituate Town Solicitor requests an advisory opinion on behalf of the Petitioner, the Scituate Deputy Town Clerk, a municipal appointed position, as to whether she may continue to serve as Clerk to the Board of Canvassers given that she has filed as a candidate for the office of Town Clerk, a municipal elected position.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Scituate Deputy Town Clerk, a municipal appointed position, may not continue to serve as Clerk to the Board of Canvassers due to the fact that she has filed as a candidate for the office of Town Clerk, a municipal elected position resulting in an inherent conflict of interest. The Petitioner’s duties as Clerk include certification of nomination papers (involving checking to ensure that all of the signatures represent registered voters), registering voters, and the taking of minutes at Board meetings. Her continued service would put her in a situation where her own Board has jurisdiction over her activities, thereby implicating the prohibitions contained in Sections 5 (a), (b) and (e) of the Code. In addition, recusal is not a viable option since her political activity would necessitate recusal on a regular basis, thus triggering Regulation 5003’s prohibition against frequent recusal. The fact that she may not serve as Clerk to the Board of Canvassers does not mean, however, that she may not continue to serve as Deputy Town Clerk.

The Petitioner presently serves as Clerk to the Board of Canvassers by the Town Clerk’s designation. Pursuant to R.I. Gen. Laws, §17-8-5(a)(1), the Town Clerk serves ex officio as Clerk to the Board of Canvassers. The Petitioner advises that she is seeking election to the office of Town Clerk. Under the Code of Ethics, the Petitioner may not have any interest which is in substantial conflict with the proper discharge of her duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). She also may not accept other employment which will either impair her independence of judgment as to her official duties or require her, or induce her, to disclose confidential information acquired by her in the course of her official duties. R.I. Gen. Laws § 36-14-5(b). Additionally, she may not appear before her Board before the expiration of one year after she has officially severed her position with the Board. R.I. Gen. Laws § 36-14-5(e). Therefore, the Petitioner cannot both serve as Clerk to the Board of Canvassers and be a candidate for elective office. Finally, there is no basis for finding a hardship in this instance. The official who designated that the Petitioner serve as Clerk to the Board of Canvassers in his stead, the Town Clerk, would not be barred from serving in that capacity or from designating another Town employee to fulfill that role.

As Deputy Clerk for the Town the Petitioner may perform ministerial tasks relating to the election in which she is participating as a candidate. Because her likely responsibilities are ministerial, not substantive, the Code of Ethics does not bar her from serving in that position while she seeks election to the office of Town Clerk. However, in the event her responsibilities as the Deputy Town Clerk involve her in matters that might impact the electoral process in which she is involved as a candidate, the Petitioner should recuse herself from participating in those matters. Notice of recusal should be filed with both the Town of Scituate and the Ethics Commission pursuant to R.I. Gen. Laws, § 36-14-6.

Finally, the Petitioner is advised that this opinion only address whether the Code of Ethics prohibits her from seeking the office of Town Clerk while serving as Clerk for the Board of Canvassers. It does not address whether any other statutes, rulings or policies, specifically from the State Board of Elections, prohibit such simultaneous service.

Code Citations:

96-93

96-78

96-48

95-39

91-62

83-40

Keywords:

Dual public roles

Ministerial

Political activity