Advisory Opinion No. 2006-29

Advisory Opinion No. 2006-29

Re: Diane Bampton Allen

QUESTION PRESENTED:

The petitioner, a member of the Exeter Town Council, a municipal elected position, requests an advisory opinion regarding whether she may represent herself before the Town Council at hearings to determine whether she violated the Town Charter and should forfeit her position on the Town Council.  The petitioner also asks whether she is permitted to participate as a member of the Town Council in hearings relative to identical charges filed simultaneously against other Town Council members.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Exeter Town Council, a municipal elected position, may represent herself before the Town Council at hearings to determine whether she violated the Town Charter and should forfeit her position on the Town Council.  The Ethics Commission also opines that the petitioner is required to recuse from participation in Town Council hearings relative to identical charges filed simultaneously against other Town Council members.

The petitioner is a member of the Exeter Town Council ("Council").  Council members are elected to serve two-year terms and currently receive a stipend in the amount of $1,218.35 per year.  The petitioner states that a Town of Exeter ("the Town") resident has filed complaints with the Town alleging that the petitioner and two other Council members have violated the Town Charter ("the Charter") and, therefore, have forfeited their public offices pursuant to the Charter. 

In particular, on March 31, 2006, a single complaint was filed with the Town Clerk alleging that the Council members William J. Devanney ("Devanney") and Wayne E. Cross violated the Charter by voting to schedule a referendum vote on the issue of repealing an elderly tax stabilization ordinance.  Although the petitioner voted along with Devanney and Cross to schedule the referendum, she was not named in that complaint.  However, a second complaint was filed on July 1, 2006 by the same individual against the petitioner, Devanney and Cross.  In this second complaint it was alleged that all three Council members violated the Charter by voting to reinstate a stipend for Council members.[1]  Once again, the complaint demanded a determination that the Council members have forfeited their public offices.  Pursuant to the Charter, hearings on alleged Charter violations and forfeitures of office are conducted by the Town Council.

Given the above representations, the petitioner asks whether she is permitted to represent herself in any Council hearing relative to the complaint filed against her and whether she is permitted to participate as a Council member in the hearings insofar as they relate to the complaint allegations levied against the two other Council members.

As to the first question, section 5(e) of the Code of Ethics provides that “[n]o person subject to the Code of Ethics shall . . . represent him or herself before any state or municipal agency of which he or she is a member or by which he or she is employed.”  R.I. Gen. Laws § 36-14-5(e).  Section 5(e) further provides, however, that in cases of hardship the Ethics Commission may permit such representation provided (1) there is full disclosure of the conflicting interests; (2) the official recuses him or herself from the agency’s consideration and disposition of the matter at issue; and (3) the official follows any other recommendations made by the Ethics Commission to avoid any appearance of impropriety.  See R.I. Gen. Laws § 36-14-5(e)(1)(i)-(iii).

We find that the circumstances here present a clear case of hardship justifying the petitioner's self-representation before the Council.  The petitioner has not applied to the Council for any form of relief or benefit.  Rather, a third party has initiated complaint proceedings to which the petitioner must respond to defend herself.  Under these circumstances, the petitioner is clearly entitled to appear to present facts and argument in her own defense.  See A.O. 98-29 (hardship exists to permit member of Contractor's Registration Board to defend himself in disciplinary hearing before his Board).  Prior to such an appearance, however, the petitioner must recuse and file a conflict of interest statement with the Council and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6.

The petitioner's recusal is also required, regardless of issues of self-representation, pursuant to sections 5(a) and 5(d) of the Code of Ethics.  A public official may not participate in any matter in which he or she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his or her duties in the public interest.  R.I. Gen. Laws § 36-14-5(a).  A substantial conflict of interest occurs if a public official has reason to believe or expect that he or she or any family member or business associate, or any business by which he or she is employed or represents, will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity.  R.I. Gen. Laws § 36-14-7(a).  More specifically, a public official is prohibited from using his or her public position to obtain financial gain, other than that provided by law, for him or herself, a family member, business associate, or any business by which he or she is employed or represents.  R.I. Gen. Laws § 36-14-5(d).  Participation as a Council member in hearings that may result in public findings of willful misconduct against the petitioner, her ejection from public office and the loss of a yearly stipend would violate both sections 5(a) and 5(d) of the Code which prohibit a public official from taking official action and using his or her public office to derive financial gain.

These same sections of the Code also require that the petitioner recuse from participating in the Council's consideration of the complaints as they relate to the two other Council members.  This is true even though the petitioner is only officially named in one of the complaints.  Because all three Council members, including the petitioner, are alleged to have engaged in the same underlying conduct, sections 5(a) and 5(d) of the Code prohibit the petitioner from taking official action to determine whether such conduct runs afoul of the Charter and requires forfeiture of office.  All three Council members participated in the particular votes that form the basis for the two complaints.  Because the issue of whether such voting is prohibited by the Town Charter is common to each complaint, it stands to reason that the Council's decision as to this issue in one complaint will be applied consistently in others. See A.O. 2003-61 (where several Tiverton Town Council members sought reimbursement of legal expenses for same reason, common issues in each request required recusal from Council's consideration of each others' requests).  Accordingly, the petitioner must recuse from participating in the Council's consideration of any of the complaints, and must file a statement of conflict of interest with the Council and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6.[2]

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2003-61

99-96

98-43

98-29

97-128

96-65

95-52

93-31

92-1

[1] This vote was also the basis for ethics complaints filed against Devanney, Allen and Cross (Complaint Nos. 2005-15, 2005-16 and 2005-17, respectively).  These complaints were disposed of in Informal Resolutions and Settlements.

[2] We recognize that the required recusal of three Council members from any particular agenda item may create a quorum problem.  However, neither the petitioner nor the Town Council as a whole has sought an opinion from the Ethics Commission regarding application of the Rule of Necessity.