Advisory Opinion No. 2017-22 Rhode Island Ethics Commission Advisory Opinion No. 2017-22 Approved: May 23, 2017 Re: Wayne M. Kezirian, Esq. QUESTION PRESENTED: The Petitioner, the Chair of the Rhode Island Public Transit Authority, a state appointed position, requests an advisory opinion regarding whether he may accept an offer from TransitCenter, a New York based nonprofit foundation that offers no products or services for compensation, to pay for his travel and participation expenses relative to a two-day workshop for transit agency board members being held in Minneapolis, Minnesota. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Chair of the Rhode Island Public Transit Authority, a state appointed position, may accept an offer from TransitCenter, a New York based nonprofit foundation that offers no products or services for compensation, to pay for his travel and participation expenses relative to a two-day workshop for transit agency board members being held in Minneapolis, Minnesota. The Petitioner is a member, and serves as the Chair, of the Rhode Island Public Transit Authority (“RIPTA”), a quasi-public state agency responsible for operating public transit services throughout Rhode Island. He represents that he was recently invited by TransitCenter, a nonprofit foundation based in New York City, to attend a two-day workshop for transit agency board members being held in Minneapolis, Minnesota. The workshop, entitled “Transit Agency Board of Directors Member Training – Improving the Performance of your Transit Agency,” is described in TransitCenter materials as including an interactive workshop and field visits to the Minneapolis/St. Paul Metro Transit system. The Petitioner states that TransitCenter has offered to pay for the Petitioner’s travel, lodging and meals associated with his attendance, and asks whether the Code of Ethics permits him to accept TransitCenter’s invitation and offer. As a state appointed official 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 of Ethics 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 was provided by an “interested person.” See A.O. 2017-7 (Regulation 5009 prohibits State Senator from accepting complimentary airfare, hotel accommodations, awards dinner tickets or reimbursement for his per diem expenses from a nonprofit organization that has a financial interest in legislation introduced by the Senator); 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 TransitCenter does not appear to be an “interested person” as that term is used in Regulation 5009 because it does not have a financial interest in decisions made by RIPTA or the Petitioner, as RIPTA’s Chair. Indeed, in its written invitation to the Petitioner, TransitCenter expressly states that the workshop “is funded with philanthropic grants not affiliated with any vendor or for-profit contractor.” Furthermore, the Petitioner states that he has made inquiry of TransitCenter as to its relationship with the State of Rhode Island and was informed that TransitCenter is not a vendor and does not offer any products or services for compensation in Rhode Island or elsewhere. Instead, the Petitioner’s review of TransitCenter’s 2015 IRS Form 990 indicates that TransitCenter’s income is derived primarily from investment of its approximately $75 million endowment, with the balance coming from contributions.[1] Finally, TransitCenter is not registered as a lobbyist or lobbying entity in Rhode Island. These facts are more analogous to those set forth in Advisory Opinion 2015-47, where an employee of the Rhode Island Department of Revenue asked whether he could accept an offer from the Pew Charitable Trusts (“Pew”) to pay for his travel expenses relative to attendance at an economic development roundtable discussion in Washington, D.C. The Ethics Commission opined that Pew was not an interested person as to the petitioner, because it was not a vendor or contractor with his agency, had no financial interest in the petitioner’s decision-making, and did not employ lobbyists in the state. Because Pew was not an interested person, the petitioner was not prohibited by Regulation 5009 from accepting reimbursements relating to his attendance at the roundtable event. See also A.O. 98-114 (Associate Director of Rhode Island Department of Transportation (“DOT”) not prohibited from attending event presented by the Rhode Island Public Expenditure Council (“RIPEC”), a non-profit public policy research and education organization, as RIPEC had no financial interest in decisions made at the DOT). Similar to Pew and RIPEC’s interests in the above advisory opinions, TransitCenter’s interest in RIPTA and the Petitioner’s decision-making appears to be policy-related rather than financial in nature. Based on all of the above, TransitCenter does not have a direct financial interest in decisions made by the Petitioner or RIPTA. Therefore, TransitCenter is not an “interested person” for the purposes of Regulation 5009 and the Petitioner is not prohibited from accepting TransitCenter’s offer to pay for his travel and participation expenses relative to attendance at a two-day workshop for transit agency board members being held in Minneapolis, Minnesota 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. 2017-7 A.O. 2015-47 A.O. 2014-4 A.O. 98-114 A.O. 98-20 A.O. 97-20 Keywords: Gifts Travel