Advisory Opinion No. 2015-47 Rhode Island Ethics Commission Advisory Opinion No. 2015-47 Approved: October 20, 2015 Re: Paul L. Dion, Ph.D. QUESTION PRESENTED: The Petitioner, Chief of the Office of Revenue Analysis for the Rhode Island Department of Revenue, a state employee position, requests an advisory opinion regarding whether he may accept an offer by the Pew Charitable Trusts to pay for his travel expenses to attend a roundtable discussion in Washington, D.C., concerning the evaluation of economic development incentives. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Chief of the Office of Revenue Analysis for the Rhode Island Department of Revenue, a state employee position, may accept an offer by the Pew Charitable Trusts to pay for his travel expenses to attend a roundtable discussion in Washington, D.C., concerning the evaluation of economic development incentives, provided that the Pew Charitable Trusts does not have a direct financial interest in decisions that the Petitioner is authorized to participate in as part of his official duties. The Petitioner is the Chief of the Office of Revenue Analysis for the Rhode Island Department of Revenue (“the Office”). He represents that the Office is responsible for analyzing, evaluating and appraising Rhode Island’s system of taxation, and for making recommendations to revise the tax system for the benefit of Rhode Island’s economy. More specifically, the Office prepares a biennial Tax Expenditures Report and an annual Unified Economic Development Report; publishes monthly reports on cash collections and adjusted revenue; prepares cost benefit analyses of tax proposals; prepares fiscal notes showing the impact of proposed policies and legislation upon state revenues; and forecasts the state’s general revenues for use in the biannual Revenue Estimating Conference and the Governor’s recommended budget. The Petitioner advises that he and another employee in the Office have been invited by the Pew Charitable Trusts (“Pew”) to attend and participate in a two-day conference called the Economic Development Evaluators Roundtable at Pew’s Washington, D.C., offices. According to Pew, the purpose of the conference is to kick off a discussion of best practices and the development of rigorous standards relative to evaluating the effectiveness of business incentives offered by states. Pew has offered to pay for the Petitioner’s travel, lodging, ground transportation, meals and refreshments associated with attending the event, if permitted by the Code of Ethics. Accordingly, the Petitioner seeks the Ethics Commission’s opinion as to whether the Code of Ethics permits him to accept Pew’s offer. As a state employee who is subject to the Code of Ethics, the Petitioner is prohibited from accepting or receiving from an interested person any gift or other thing having a fair market value or actual cost that is greater than twenty-five dollars ($25). Commission Regulation 36-14-5009(b) (“Regulation 5009”). Regulation 5009 also prohibits the receipt of multiple gifts from an interested person in a single calendar year that have an aggregate fair market value or actual cost that is greater than seventy-five dollars ($75). Id. An “interested person” is defined by the Code as a person or a representative of a person or business that has a direct financial interest in a decision that the person subject to the Code of Ethics is authorized to make, or participate in the making of, as part of his or her official duties. Regulation 5009(c). A public official or employee’s receipt of more than twenty-five dollars ($25) in travel or travel-related expenses would fall within Regulation 5009’s gift prohibition if such travel is provided by an “interested person.” See A.O. 2013-4 (Regulation 5009 prohibits Providence’s Director of Economic Development from allowing ProvPort, a nonprofit corporation that operates the Port of Providence under contract with the City, to pay for his travel expenses to promote the Port of Providence given that the Director is involved in reviewing and negotiating the City’s contracts with ProvPort); A.O. 98-20 (Medical Program Director for Department of Corrections prohibited from accepting travel from an agency vendor); A.O. 97-20 (Director of Department of Elderly Affairs prohibited from accepting travel from a vendor). Unlike the facts presented in the above advisory opinions, in the instant case the Petitioner represents that to the best of his knowledge Pew is not a vendor or contractor with his agency. Therefore, the Petitioner is not in a position to supervise, review or regulate Pew. However, Pew has indicated that it may register to lobby in Rhode Island and that such registration may be effective on the date of the conference. Although not specified in the Petitioner’s letter, we presume that Pew’s lobbying will include both the executive and legislative branch. Lobbying activity by an entity may, in some cases, be indicative of the existence of a financial interest in the lobbied agency’s decisions. For example, in Advisory Opinion 2006-15, a State Senator was invited by a pharmaceutical company’s lobbyist to attend a health care conference in Florida with complimentary airfare, hotel accommodations and meals. Noting that the company regularly employed legislative lobbyists to take a position on multiple bills pending in the Senate, the Commission found that the company was an “interested person” with a financial interest in decisions that the Senator made as part of his official duties. However, lobbying activities do not always implicate a financial interest on the part of the lobbying entity. For example, in Advisory Opinion 98-114, an Associate Director for the Rhode Island Department of Transportation asked the Ethics Commission whether she could attend a dinner meeting presented by the Rhode Island Public Expenditure Council (“RIPEC”), a non-profit public policy research and education organization dedicated to the advancement of effective, efficient and equitable government in Rhode Island. The Commission reviewed RIPEC’s organizational status and concluded that it was not an “interested person” as defined in Regulation 5009: While RIPEC may undertake educational, informational or even lobbying activities in favor of or opposed to general or specific legislative or administrative proposals or initiatives, it does not do so having a direct financial interest in the legislative or administrative decisions to be made. The purpose of Regulation 5009 is not to stem the flow of information available to decision-makers. Rather, it is to prohibit “interested persons,” defined as those with a direct financial interest in the outcome of a decision, from providing the decision-makers with gifts. If, however, RIPEC finds itself in the position of promoting or seeking administrative action by the DOT that would have a direct financial impact on it, or on a significant segment of its constituent members, then it would be subject to the same limitations and prohibitions as any other interested person. A.O. 98-114 (emphasis added). Similar to RIPEC’s interest in RIDOT decisions discussed in Advisory Opinion 98-114, in the instant matter Pew’s interest in the Department of Revenue and the Petitioner’s decision-making appears to be policy-related rather than financial in nature. Based on all of the above, if it is true that Pew does not have a direct financial interest in decisions made by the Petitioner or the Department of Revenue, then Pew is not an “interested person” for the purposes of Regulation 5009 and the Petitioner is not prohibited from accepting Pew’s offer of lodging, ground transportation, meals and refreshments associated with attending the conference in Washington, D.C. 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: Commission Regulation 36-14-5009 Related Advisory Opinions: A.O. 2013-4 A.O. 2006-15 A.O. 98-114 A.O. 98-20 A.O. 97-20 Keywords: Gifts Travel