Advisory Opinion No. 2005-17 Re: James A. Seveney QUESTION PRESENTED: The petitioner, a member of the Portsmouth Town Council, a municipal elected position, requests an advisory opinion as to whether he may participate in and vote on the Town’s budget given that the petitioner’s spouse is an elementary school teacher in the Portsmouth School Department. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Portsmouth Town Council, a municipal elected position, may participate in and vote on the Town’s budget notwithstanding that the petitioner’s spouse is an elementary school teacher in the Portsmouth School Department. The petitioner informs he was elected to the Portsmouth Town Council in November 2004. He represents that, under the Portsmouth Town Charter, the Town Council sets the budget for all Town departments, including the School Department. He informs that the Town Council will soon approve the entire municipal budget, which will include a line item for the School Department’s budget. The petitioner also advises that his wife is an elementary school teacher in the Portsmouth School Department and is a member of the teacher’s union. The petitioner represents that the Superintendent of Portsmouth and his staff prepare the School Department’s budget and present it to the School Committee for its review. He informs that the School Committee then recommends a budget for the School Department to the Town Council for its approval. The petitioner informs that, as a Town Councilor, he may vote on the “bottom-line” budget amount for the School Department as part of the Town Council’s approval of the Town’s overall budget. He represents that the Town Council may vote to accept or reject the budget figure recommended to it, or, that it may vote to establish a new figure. In the past, the petitioner advises that the Town Council has approved an overall budget figure that was lower than that recommended to it. The petitioner represents, however, that the Town Council does not make funding decisions with regard to specific School Department programs or items within the School Department’s budget. Moreover, the petitioner informs that he, as a Town Councilor, neither has control over any specific details of the School Department’s budgeting process nor has any influence over the labor negotiations with any School Department bargaining unit. Rather, the petitioner informs that the Town Council is only concerned with the “bottom-line” funding amount designated to the School Department’s budget. Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). An official has an interest in substantial conflict with her official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, his family member, his business associate, his employer or any business by which he is employed or which he represents. R.I. Gen. Laws § 36-14-7(a); Regulation 36-14-7001. Furthermore, a public official may not use her public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, his family member, his business associate, his employer or any business he represents. R.I. Gen. Laws § 36-14-5(d). In past advisory opinions, the Commission has allowed town council members with family members employed by the town’s school department to vote on the town’s overall budget even if by so doing the members are voting on school department matters impacting their family members. See, e.g. A.O. 98-88 (North Providence Town Councilor, a municipal elected position, may vote on the Town’s budget notwithstanding that it includes the School Department’s budget containing a salary adjustment for his spouse who is a Clerk to the School Committee). In such circumstances, the Commission has reasoned that a vote on an overall budget is sufficiently remote from such items so as not to constitute a substantial conflict of interest in violation of the Code. See, e.g., A.O. 2002-44 (Warwick City Councilor, whose spouse was employed by the Warwick School Department, may participate in and/or vote on the Town budget even if it includes matters related to school budgets and school issues generally, provided that he does not participate in and/or vote on specific matters related to personnel issues affecting his spouse). Here, the petitioner is not voting on specific items within the School Department’s budget, and he has no involvement, whatsoever, with the School Department’s budgeting process or how the School Department spends its funding. Accordingly, by merely concerning itself with the final figure for he School Department’s budget as a whole, the petitioner will not violate the Code. The Commission therefore opines, given the petitioner’s representations, that he may participate in and vote on the entire Town budget notwithstanding that the budgetary process requires the Town Council to determine the “bottom-line” budget amount designated to the School Department. The Commission points out, however, that the petitioner should recuse himself from participating in and/or voting on matters regarding his spouse or the School Department that will directly impact his spouse. The Commission notes that notice of recusal, if required, should be filed with the Ethics Commission and the Town Council in accordance with R.I. Gen. Laws § 36-14-6. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) Regulation 36-14-7001 Related Advisory Opinions: 2003-25 2003-9 2002-44 98-88 Keywords: Budgets Family: Public employment