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Recusal

The Code of Ethics provides that public officials and employees must file a statement of conflict of interest, or recusal form, concerning matters where he or she may have a conflict of interest in the discharge of his or her official duties. A conflict of interest may exist if an official or employee can reasonably expect that his or her official conduct will directly result in a financial benefit to the official, his or her family, business associates, employers, or businesses that the official represents. The conflict need not be certain to occur, but the probability must be greater than "conceivably." See R.I. Gen. Laws §36-14-6, and Regulations 36-14-5002 and 36-14-6001.
 
What is recusal?

Recusal, under the Code of Ethics, refers to a public official or employee declining to participate in a matter because of a potential conflict of interest under the Code of Ethics. Recusal is not the same as abstaining which may mean that the public official will not vote, but has participated in discussions on a matter. Recusal means that you are not participating in deliberations or debates, making recommendations, giving advice, considering findings, or in any other way assuming responsibility for or participating in any aspect of the work or decision-making relating to the matter where there are potential conflicts of interest. It does not mean that the public official must leave the room if it is an open meeting, although a public official may voluntarily choose to do so. However, if the public body is in executive session, once the official has recused, he or she has no more right to be in the room than any other member of the general public. An official may be able to speak as a private citizen under the "Public Forum Exception," however, this does not include substantive discussions in forums not available to members of the general public, nor does it allow a public official to represent the views of others or act as an expert witness before his or her own agency.

Options:

A public official with a potential conflict of interest must recuse from participation and file a recusal form as soon as he or she has reason to believe that he or she has a conflict of interest. If there is a matter that does not actually rise to that level, a public official may still provide notice (some recusal forms contain this option) of the perceived conflict along with an explanation as to the reasons why he or she believes that he/she is able to participate objectively, fairly, and in the public interest.

How to recuse:

  • Complete a Statement of Conflict of Interest form, or write or sign a memo which includes the following information:                

    • Name

    • Position & agency

    • Describe the nature of your conflict

    • Indicate that you are recusing from participation

    • Sign the memo or form under penalty of perjury

  • Present the original to your presiding officer, appointing authority, director, or immediate superior

  • Send a copy to the Ethics Commission

Frequent Recusal:

If a public official recuses with such frequency as to give the appearance of impropriety, the person may be deemed to have violated the Code of Ethics. However, if the recusals are necessitated by circumstances beyond the official’s control and are the only legal course of action available to that person to protect a vested property interest, a violation would not occur. See Regulation 36-14-5003.

Delegation:

If a public official or employee recuses on an issue, there may be a need to have another person handle the matter. The Code of Ethics prohibits the recusing person from exercising any and all authority relating to the matter, including assigning the matter to a subordinate. It is the obligation of the recusing person’s supervisor, presiding officer, or appointing authority to assign the responsibilities to someone who does not have a conflict of interest.  

Quorum:

Occasionally, several members of a public board may recuse on the same matter because of potential conflicts of interest. This may cause the board to lack a sufficient quorum to vote. In limited circumstances, the Ethics Commission may grant a hardship exception based on the Rule of Necessity, thereby allowing one or more of the recusing members to vote. The public body must seek an advisory opinion from the Ethics Commission requesting a Rule of Necessity exception before acting on the matter.

Complaints:

Finally, if a public official files a recusal statement with the Ethics Commission and a complaint is later received alleging that the official participated on that matter, the Commission will be able to investigate and dismiss the complaint within a short time period.