Advisory Opinion No. 2012-1 Advisory Opinion No. 2012-1 Re: Jane B. Sherman QUESTION PRESENTED The Petitioner, a member of the Rhode Island Transportation Advisory Committee, a state appointed position, who is also a member of the Rhode Island Board of Governors for Higher Education, a state appointed position, requests an advisory opinion regarding whether, in her capacity as a member of the Transportation Advisory Committee, she may participate in discussions and votes that concern funding for institutions under the jurisdiction of the Board of Governors for Higher Education. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Rhode Island Transportation Advisory Committee, a state appointed position, who is also a member of the Rhode Island Board of Governors for Higher Education, a state appointed position, may participate in Transportation Advisory Committee discussions and votes that concern funding for institutions under the jurisdiction of the Board of Governors for Higher Education, notwithstanding that she is a member of the Board of Governors for Higher Education. The Petitioner is a member of the Rhode Island Board of Governors for Higher Education ("Board of Governors"), having been appointed in March 2011. She informs that the Board of Governors has jurisdiction over the University of Rhode Island ("URI"), Rhode Island College ("RIC"), and the Community College of Rhode Island ("CCRI"). The Petitioner also represents that she is a member of the Rhode Island Transportation Advisory Committee ("TAC"), serving since 2003. She informs that TAC advises the State Planning Council on transportation planning and encourages public involvement in the process. She states that TAC develops the Transportation Improvement Program ("TIP"), which is adopted by the State Planning Council. She advises that TIP channels federal transportation dollars to individual projects and programs implemented by the Rhode Island Department of Transportation and the Rhode Island Public Transit Authority. She represents that both positions are unpaid. The Petitioner informs that in the current round of TIP applications, there is an application from URI for 1.4 million dollars of funding for a bike path. She states that TAC votes to approve multiple TIP applications as a whole, generally not singling out a particular application unless there is a specific amendment with regard to a line item. Based upon the above representations, the Petitioner seeks advice regarding whether she can participate in TAC discussions and votes that involve funding to URI, given that URI is under the jurisdiction of the Board of Governors.[1] Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her 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 she, any person within her family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Additionally, a public official may not use her office for pecuniary gain, other than as provided by law, for herself, a family member, employer, business associate, or a business that she represents. Section 36-14-5(d). The Code further provides that a public official shall not engage in any employment that would impair her independence of judgment as to her public duties. Section 36-14-5(b). A business is defined as "a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, trust or any other entity recognized in law through which business for profit or not for profit is conducted." Section 36-14-2(2). A business associate is defined as "a person joined together with another person to achieve a common financial objective." Section 36-14-2(3). A person is defined as "an individual or a business entity." Section 36-14-2(7). This Commission has previously opined that state and municipal agencies are not considered "businesses" or "business associates" as those terms are defined in the Code of Ethics. See A.O. 2008-50 (opining that the Rhode Island State Veterinarian, an employee of the Division of Agriculture, was not inherently prohibited by the Code from serving as an adjunct professor at URI, notwithstanding the fact that the two roles may intersect, as neither the Division of Agriculture nor URI were "businesses" as defined by the Code and thus the petitioner’s relationships with those entities were not "business associations"); A.O. 2002-63 (opining that an Exeter Town Councilor was not prohibited from participating in Town Council matters regarding property owned by the State of Rhode Island, notwithstanding the fact that he was in negotiations with DEM to sell land that he owned to the State of Rhode Island, given that the State of Rhode Island is not a business as defined under Rhode Island law, and cannot therefore be considered his "business associate" under the Code of Ethics); A.O. 2002-55 (opining that the term "business" as used in the Code of Ethics does not include public entities such as the Town of Richmond). In the present matter, the central question is whether the Code of Ethics prohibits the Petitioner, a member of one public entity, TAC, from taking action as a member of that entity that will result in a financial impact to another public entity, URI, given her membership on URI’s governing body, the Board of Governors. Under the Code of Ethics, neither the Board of Governors nor TAC are considered "businesses" or "business associates." Therefore, the Petitioner’s memberships on the Board of Governors and TAC do not constitute business associations with those public entities. Accordingly, absent any other relevant fact that would implicate provisions of the Code of Ethics, the Petitioner may participate in TAC discussions and votes that include funding for institutions under the jurisdiction of the Board of Governors, notwithstanding that she is a member of the Board of Governors. The Petitioner is cautioned, however, that if any matters should come before her as she is carrying out her duties in either of her public roles that may present any other potential conflict of interest that is not otherwise contemplated in this advisory opinion, or circumstances in which it is reasonably foreseeable that there will be a financial impact upon the Petitioner personally, she should either request further advice from this Commission or exercise the recusal provision found at Section 36-14-6. Code Citations: § 36-14-2(2) § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2008-50 A.O. 2002-63 A.O. 2002-55 Keywords: Dual Public Roles [1] Additionally, the Petitioner’s request for an advisory opinion informs that, in her private capacity, she is a member of the Women and Infants Hospital Institutional Review Board ("IRB"). She seeks advice as to whether she can participate in IRB discussions and votes on matters involving the employees or students of the institutions under the jurisdiction of the Board of Governors. However, the issue before the Commission is limited to the Petitioner’s official actions in her capacity as a state appointed official serving on TAC and the Board of Governors.