Advisory Opinion No. 2006-38 Advisory Opinion No. 2006-38 Re: Frederic C. Crowley QUESTION PRESENTED The petitioner, an unopposed candidate for the Cumberland School Committee, a municipal elected position, whose spouse is an incumbent member of the Cumberland School Committee running for reelection, requests an advisory opinion as to whether, if elected, he is permitted to vote to elect himself or his spouse as Chair of the School Committee. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, an unopposed candidate for the Cumberland School Committee, whose spouse is an incumbent member of the Cumberland School Committee running for reelection, may participate in a School Committee vote to elect himself or his spouse as Chair of the School Committee provided that he and his spouse expressly waive any right to receive an additional stipend or remuneration if elected.[1] The petitioner represents that both he and his spouse are running for seats on the Cumberland School Committee. The petitioner states that he is unopposed in his election and that his spouse, though opposed, is an incumbent. The petitioner notes that the School Committee is scheduled to meet two days after the election to be sworn in and to elect officers. The petitioner informs that all School Committee members receive a stipend in the amount of $2,200 per year, with the Chair receiving an additional monetary stipend. The petitioner asks whether, if elected to the School Committee, he may then vote to elect himself or his spouse to the position of Chair. He adds that, if required by the Code, both he and his spouse are willing to waive the Chair's additional stipend. Under 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). An official has an interest in substantial conflict with his or 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 or her family member, business associate, employer or any business by which he or she is employed or represents. R.I. Gen. Laws § 36-14-7(a); Regulation 36-14-7001. Additionally, a person subject to the Code of Ethics is prohibited from using his or her public position or confidential information received through his or her position to obtain financial gain, other than that provided by law, for himself or herself, a business associate or a family member. See R.I. Gen. Laws § 36-14-5(d). The Code of Ethics identifies spouses as family members. R.I. Gen. Laws § 36-14-2(1). Here, whoever is elected by the members of the School Committee to serve as its Chair will receive an additional monetary stipend. Given this additional stipend, the petitioner's participation in School Committee discussions and voting leading to the election of himself or his spouse to the position of Chair would amount to official activity that is likely to result in a financial benefit to himself or a family member in violation of sections 5(a) and 5(d). The Ethics Commission was faced with a nearly identical set of facts in A.O. 97-29. There, a husband and wife both had been elected to the North Kingstown School Committee, and both had participated in a vote to elect the husband as Chair. The husband sought an advisory opinion from the Ethics Commission as to whether he could accept the Chair's additional $100 stipend. The Commission acknowledged that the acceptance of the $100 stipend likely implicated section 5(a) of the Code. However, the Commission wrote that it was "routine" for elected and appointed officials to participate and vote in decisions to elect themselves as the Chair of a public entity. For that reason, and because the additional stipend had already been set by the North Kingstown Charter, the Commission opined that the petitioner could accept the additional stipend without violating the Code. Although A.O. 97-29 embodied the opinion of the Ethics Commission in 1997, we are today unable to agree with that opinion's rationale or result. While it may be routine and an accepted practice for a private citizen to vote for oneself in a general election for public office, once elected a public official becomes subject to the Code of Ethics and is therefore prohibited from taking any action as part of his official duties that will result in a financial benefit to himself or to a family member. See §§ 36-14-5(a), 36-14-7(a). These provisions of the Code would clearly apply to and prohibit an elected official from voting oneself or one's spouse into an office that will receive additional pay. Whether such conduct was "routine" prior to the enactment of the Code of Ethics is largely irrelevant. The petitioner states that both he and his spouse would, if elected as Chair of the School Committee, waive the receipt of any additional stipend. It is the opinion of the Ethics Commission that such an express waiver made at the time of voting and prior to the receipt of the stipend would eliminate the direct financial benefit that would accrue by reason of election to the position of Chair. Accordingly, if such express waiver is given and thereafter implemented, the petitioner's vote to elect himself or his spouse to the position of Chair of the School Committee will not violate the conflict of interest provisions of the Code of Ethics. Code Citations : 36-14-2(1) 36-14-5(a) 36-14-5(d) 36-14-7(a) 36-14-7001 Related Advisory Opinions : 97-29 Keywords : nepotism [1] The Ethics Commission typically rejects as too hypothetical any request for an advisory opinion concerning a scenario that will only occur if a person is elected to office. Such matters only become ripe for an opinion after the election. Here, however, we find that the represented facts warrant our early consideration. Particularly we are influenced by the petitioner's lack of opposition and his representation that there is only a two-day period between the general election and the election of officers, precluding any post-election opportunity for the petitioner to seek and obtain a timely advisory opinion.