Rhode Island Ethics Commission

 

 

Advisory Opinion No. 2014-31

 

Approved:  November 18, 2014

 

Re:  Richard J. DelFino, III

 

QUESTION PRESENTED:

 

The Petitioner, a member-elect of the Johnston Town Council, a municipal elected position, requests an advisory opinion regarding what limitations the Code of Ethics places upon his participation in certain matters before the Town Council, specifically including the appointment of the Municipal Court Judge and the review and approval of the municipal budget, given that his mother and father are employed by the Town of Johnston. 

 

RESPONSE:

 

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member-elect of the Johnston Town Council, a municipal elected position, is prohibited by the Code of Ethics from participating in any matter before the Town Council that directly involves either of his parents.  Furthermore, specifically in response to the Petitioner’s questions, it is the opinion of the Ethics Commission that the Petitioner is prohibited from: (1) participating in the Town Council’s appointment of the Municipal Court Judge while his father serves or seeks to serve as the Municipal Court Clerk; and (2) participating in the Town Council’s discussions and votes relating to line items in the budget that address or affect the employment, compensation or benefits of either of his parents.  However, the Petitioner is permitted to participate in the Town Council’s discussion and decision-making relative to approving or rejecting the entire municipal budget as a whole.

 

The Petitioner represents that he was elected on November 4, 2014, to represent District 1 on the Johnston Town Council (“Town Council”) for a two-year term commencing in January 2015.  The Petitioner states that both of his parents are employees of the Town of Johnston (“Town”).  He represents that his father, Richard J. DelFino, Jr., currently serves in a part-time position as the Town’s Municipal Court Clerk (“Court Clerk”).  He states that the Court Clerk is appointed by the Municipal Court Judge to serve for the duration of the Judge’s two-year term.[1]  He represents that his father was appointed by Municipal Court Judge Michael DiChiaro (“Judge DiChiaro”) approximately two years ago.  In addition, the Petitioner represents that his mother, Debra M. DelFino, is currently employed in the Finance Office in the Town Hall.  He states that she has been in that position for approximately six years.  He informs that she was hired by the Mayor and she reports to the Finance Director. 

Cognizant of the Code of Ethics, the Petitioner seeks advice as to what limitations the Code of Ethics places on his participation in certain Town Council discussions and votes, specifically relating to the appointment of the Municipal Court Judge and the budgets for the Municipal Court and the Finance Department, given that his parents are Town employees.     

 

Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest.  R.I. Gen. Laws § 36-14-5(a).  A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity.  Section 36-14-7(a).  The Code also prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any business by which he is employed or which he represents.  Section 36-14-5(d). 

 

In addition, Commission Regulation 36-14-5004 (“Regulation 5004”), entitled “Nepotism,” prohibits a person subject to the Code of Ethics from participating in any matter as part of his public duties if he “has reason to believe or expect that any person within his [] family, or any household member, is a party to or a participant in such matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage, as the case may be.”  Regulation 5004(b)(1).  The definition of “any person within his or her family” specifically includes “mother” and “father.”  Regulation 5004(a)(2).

 

Regulation 5004 also addresses a public official’s participation in certain budgetary matters that may have a financial impact on their family member.  Regulation 5004(b)(3), entitled “Participation in Budgets,” provides:

 

(A)  General Prohibition. No person subject to the Code of Ethics shall participate in discussion or decision-making relative to a budgetary line item that would address or affect the employment, compensation or benefits of any person within his or her family or a household member.

 

(B)   Specific Line Items. Notwithstanding the prohibition set forth in subsection 3(A), a person subject to the Code of Ethics may, only in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion, participate in discussion or decision-making relative to a budgetary line item that addresses or affects the employment, compensation or benefits of any person within his or her family or a household member as a member of a significant and definable class of persons, and not individually or to any greater extent than any other similarly situated member of the class.

 

(C)   Vote on Entire Budget. Notwithstanding the prohibition set forth in subsection 3(A), a person subject to the Code of Ethics may participate in discussion or decision-making relative to approving or rejecting the entire budget as a whole, provided that the person within his or her family or household member is impacted by the entire budget as a member of a significant and definable class of persons, and not individually or to any greater extent than any other similarly situated member of the class.

 

First, we will address whether the Code of Ethics prohibits the Petitioner from participating in the Town Council’s appointment of the Municipal Court Judge.  In the Town, the Municipal Court Judge appoints the Municipal Court Clerk to serve for the duration of the Judge’s two-year term.  After his appointment in January 2013 by the Town Council, Judge DiChiaro appointed the Petitioner’s father to serve as his Municipal Court Clerk.  The Petitioner’s father serves at the pleasure of Judge DiChiaro and will either be reappointed or replaced in January 2015 after the Town Council reappoints Judge DiChiaro or appoints a new Municipal Court Judge.  

 

Here, the Town Council’s appointment authority over the Municipal Court Judge directly relates to the Petitioner’s father’s employment because his father serves at the pleasure of the Municipal Court Judge.  Therefore, we find that the Petitioner is required to recuse, pursuant to section 36-14-5(a) and Regulation 5004, from the Town Council’s discussion and vote relating to the appointment of the Municipal Court Judge while his father serves or seeks to serve as the Municipal Court Clerk. 

 

Second, we will address how Regulation 5004 restricts the Petitioner’s participation in the Town Council’s decision-making relating to certain line items in the municipal budget that involve his parents’ employment.  The Commission has issued numerous advisory opinions in which it prohibited public officials from participating in budgetary line items that addressed or affected the employment of a person within their family.  See, e.g., A.O. 2011-26 (opining that a North Providence Town Council member was required to recuse from the Council’s review of line items in the municipal budget that impacted her sons’ terms of employment, compensation or benefits, given that both sons were Town employees).  See also A.O. 2010-31; A.O. 2009-12; A.O. 2007-30. 

 

In the present matter, the Code of Ethics generally prohibits the Petitioner from participating in the Town Council’s discussion and vote on any matter that involves either of his parents directly, would result in a financial benefit or detriment to his parents, or in which either of his parents would obtain an employment advantage.  With respect to the municipal budget, the Petitioner is also prohibited from participating in the Town Council’s discussions and votes related to line items that “would address or affect the employment, compensation or benefits” of either of his parents.  Regulation 5004(b)(3)(A).  However, with no specific information as to how the Town Council reviews each department’s budget, we are unable to determine whether a particular budget item will impact the Petitioner’s parents financially.  Accordingly, the Petitioner is advised that he must conduct a matter-by-matter analysis of whether the Town Council’s consideration and decision-making relating to a particular line item will affect either of his parents’ terms of employment, compensation or benefits.  If a line item will impact either of his parents, the Petitioner must recuse and file a conflict of interest statement with the Ethics Commission in accordance with section 36-14-6. 

 

However, pursuant to Regulation 5004(b)(3)(C), the Petitioner is permitted to participate in the Town Council’s discussion and decision-making relative to approving or rejecting the entire Town budget as a whole.  The basis for allowing such participation is the proposition that a vote on an overall budget is sufficiently remote from most particular line items so as not to constitute a substantial conflict of interest under the Code of Ethics.  Although the Petitioner is permitted to participate in the overall vote to approve or reject the municipal budget as a whole, the Commission is aware that a general discussion can quickly devolve into a more narrow review of specific items.  Accordingly, the Petitioner must be vigilant to identify such instances where a general conversation begins to focus on specific issues that are likely to financially impact his parents.  In such circumstances, the Petitioner must recuse from further participation in accordance with section 36-14-6. 

 

In summary, it is the opinion of the Ethics Commission that the Petitioner, a member-elect of the Johnston Town Council, is prohibited by the Code of Ethics from participating in any matter before the Town Council that directly involves either of his parents.  Furthermore, specifically in response to the Petitioner’s questions, it is the opinion of the Ethics Commission that the Petitioner is prohibited from: (1) participating in the Town Council’s appointment of the Municipal Court Judge while his father serves or seeks to serve as the Municipal Court Clerk; and (2) participating in the Town Council’s discussions and votes relating to line items in the budget that address or affect the employment, compensation or benefits of either of his parents.  However, the Petitioner is permitted to participate in the Town Council’s discussion and decision-making relative to approving or rejecting the entire municipal budget as a whole.  The Petitioner is encouraged to seek further guidance from the Ethics Commission concerning his ability to participate in specific Town Council matters as they arise. 

 

This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics.  Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings.  Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. 

 

Code Citations:

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-7(a)

Commission Regulation 36-14-5004

 

Related Advisory Opinions:

A.O. 2011-26

A.O. 2010-31

A.O. 2009-12

A.O. 2007-30 

G.C.A. 2009-1

 

Keywords

Budgets

Family: Public Employment

Nepotism



[1]  The Johnston Municipal Court was created by a Public Law adopted by the General Assembly in 1964.  It provides that the Town Council shall appoint a Municipal Court Judge to a two-year term in January of each odd numbered year.