Advisory Opinion No. 2017-7 Rhode Island Ethics Commission Advisory Opinion No. 2017-7 Approved: March 21, 2017 Re: Senator Stephen R. Archambault QUESTION PRESENTED: The Petitioner, a state legislator serving in the Rhode Island Senate, a state elected position, requests an advisory opinion regarding whether he may receive complimentary airfare, hotel accommodations, reimbursement for his per diem expenses, conference registration, tickets to an awards dinner and the opportunity to direct a $5,000 grant to the charity of his choice, in conjunction with his receipt of an award and plaque for “Excellence in Advocacy by an Elected Official” at the National Council for Behavioral Health Conference being held in Seattle, Washington. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a state legislator serving in the Rhode Island Senate, a state elected position, is permitted by the Code of Ethics to receive an award and accompanying plaque from the National Council for Behavioral Health, to attend the conference at which the award is bestowed, to receive a waiver of the conference registration fee, and to select a charity to receive a $5,000 grant. However, the Code of Ethics prohibits the Petitioner from accepting or receiving complimentary airfare, hotel accommodations, awards dinner tickets or reimbursement for his per diem expenses. The Petitioner is a member of the Rhode Island Senate (“Senate”). He represents that in 2016 he introduced legislation in the Senate, which ultimately was signed into law, requiring that police officers receive training in handling complaints involving mental health and substance abuse emergencies.[1] Pursuant to the legislation, the required training must be certified by the National Council for Behavioral Health (“National Council”) and must comply with its Mental Health First Aid program. See R.I. Gen. Laws § 42-28.2-8.3(a). The Petitioner represents that in early February 2017, he was notified that the National Council had selected him to receive an award for “Excellence in Advocacy by an Elected Official,” and he was invited to attend the 2017 National Council Conference (“the Conference”) in Seattle, Washington to receive his award at an “Awards of Excellence Dinner” held during the conference. The Petitioner represents that he is among approximately 17 individuals and entities receiving various awards from the National Council in several different categories. Along with an anticipated award plaque, the Petitioner states that he has been offered the following: Complimentary Conference registrations for himself and a guest, valued at One Thousand One Hundred Seventy-Five Dollars ($1,175) per registration. Transportation expenses for the Petitioner and one guest of up to Five Hundred Dollars ($500) each. Hotel accommodations for the Petitioner and one guest for up to two nights, with a value estimated by the Petitioner to be Five Hundred Dollars ($500). Two complimentary tickets to the Awards of Excellence Dinner, valued at One Hundred Dollars ($100) per ticket. A three-day, Fifty Dollars per diem ($50/day) allowance of expenses for both the Petitioner and his guest. The ability to direct a grant of Five Thousand Dollars ($5,000) to a 501(c)(3) organization of the Petitioner’s choice, provided he is not affiliated with the organization. The Petitioner notes that each of the awards being given is “supported” by a corporate sponsor. The Petitioner’s own award is sponsored by Sunovion Pharmaceuticals, Inc. (“Sunovion”). The Petitioner states that Sunovion is based in Marlborough, Massachusetts and is a U.S. subsidiary of Sumitomo Dainippon Pharma Co., Ltd. (“Sumitomo”), based in Japan. Sunovion has two lobbyists registered in Rhode Island for 2017. The Rhode Island Secretary of State website notes that these Sunovion lobbyists are interested in the following subjects: “Health Care Plans/Services” and “Pharmaceutical Assistance/Elderly.” The Petitioner represents that he has never met nor spoken with either lobbyist. The Petitioner seeks an opinion from the Ethics Commission as to whether the Code of Ethics permits him to accept the award, attend the conference, and accept the above-mentioned monetary reimbursements and prizes. As a person who is subject to the Code of Ethics, the Petitioner is prohibited from accepting or receiving, from an interested person, any gift, reward, favor, service, gratuity, special discount or other thing of value that has a fair market value or actual cost that is greater than Twenty-Five Dollars ($25). Commission Regulation 36-14-5009(b) (“Regulation 5009”). Gifts of cash in any amount, if from an interested person, are strictly prohibited. Regulation 5009(a). 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). Notwithstanding the above, public officials are permitted by Regulation 5009 to accept “services to assist an official . . . in the performance of official duties and responsibilities,” as well as “plaque[s] or other similar item[s] given in recognition of individual or professional services in a field of specialty or to a charitable cause.” Regulation 5009 (b)(2)(b) & (b)(2)(c). Because the Petitioner is being offered items (airfare, hotel, expenses) that are valued well in excess of Twenty-Five Dollars ($25), the key issue in determining whether Regulation 5009 applies is whether either the offering organization, the National Council, or the sponsoring business, Sunovion, is an “interested person.” If so, then the Petitioner is prohibited by the Code of Ethics from accepting travel-related reimbursements and other things of value. If not, then the Petitioner is free to decide whether or not to accept them. In a somewhat analogous advisory opinion from 2006, a member of the Senate sought advice as to whether he could accept free air fare, lodging and meals while attending a health care conference in Fort Lauderdale, Florida, organized by the Institute for State Policy Studies, a non-profit educational organization, but sponsored by AstraZeneca, an international pharmaceutical company. A.O. 2006-15. The petitioner represented that he had been invited to the conference by AstraZeneca’s registered Rhode Island lobbyist, and the printed invitation he received was from both the non-profit organization and AstraZeneca. Under these facts, the Ethics Commission found that the offer to pay for the conference came, at least in part, from AstraZeneca. As a for-profit entity that was registered to lobby the General Assembly, AstraZeneca was considered to be an “interested person” as to a member of the Senate. Accordingly, the Ethics Commission opined that the petitioner was prohibited from accepting the complimentary airfare, accommodations and meals. However, the petitioner was permitted to accept a waiver of the conference’s registration fees to attend seminars relating to state health policy and budget matters, pursuant to Regulation 5009’s exception allowing the receipt of “services to assist an official or employee in the performance of official duties and responsibilities.” Regulation 5009(b)(2)(b). In another prior advisory opinion, the Ethics Commission opined that a chamber of commerce could be an “interested person” as to the Department of Transportation (“DOT”) if it was lobbying or participating in matters at the DOT that would be of direct financial interest to the Chamber or a significant portion of its members, who shared a commonality of interests. A.O. 99-114. See also A.O. 99-16 (legislator prohibited from accepting a $50 ticket to a luncheon offered by the Greater Providence Chamber of Commerce, an “interested person” as to the General Assembly); A.O. 98-121 (Senator prohibited from accepting complimentary tickets to a reception held by Bell Atlantic, an “interested person” under the Code of Ethics; however, he may attend the reception if he pays Bell Atlantic consideration of equal or greater value). Here, the National Council is an organization that, in some ways, resembles the chambers of commerce in the above-cited advisory opinions. The National Council describes itself as a 501(c)(3) nonprofit association with a mission to advance the ability of its 2,800 member organizations to deliver integrated health care.[2] Among the benefits of membership, according the National Council’s own website, is “advocacy,” whereby the organization utilizes its “considerable expertise and influence to make sure that legislation, policy, and regulations are aligned with the interests [of its members].”[3] The National Council also operates “Mental Health First Aid USA,” a fee-based program that provides certified training to those who come into contact with persons who are having a mental health crisis. The legislation introduced by the Petitioner, for which he is being honored by the National Council, requires that police officers receive mental health training that complies with the National Council’s program, and it requires that persons who receive the training be certified by the National Council. See section 42-28.2-8.3(b). Based on the above, it is the opinion of the Ethics Commission that the National Council is an interested person as to the Petitioner, in that the National Council had - and continues to have - a financial interest in the subject matter of the legislation introduced by the Petitioner and passed by the State of Rhode Island. This finding is bolstered by the fact that the award and, one presumes, its accompanying financial offerings are “supported” by Sunovion, a pharmaceutical company that maintains registered lobbyists in Rhode Island and is, therefore, likely an “interested person” itself as to members of the General Assembly. Accordingly, although the Petitioner is free to accept the National Council’s award for “Excellence in Advocacy by an Elected Official,” and is not barred from attending the Conference or Awards Dinner, he may not accept the National Council’s offer to cover transportation expenses, complimentary hotel accommodations, complimentary tickets to the Awards Dinner, or reimbursement of per diem expenses. The Petitioner may accept the National Council’s offer to waive his own, but not his guest’s, Conference registration fee, and may accept a plaque commemorating his Award. Conference attendance and a plaque both fall within Regulation 5009’s exceptions for “services to assist an official . . . in the performance of official duties and responsibilities,” and “plaque[s] or other similar item[s] given in recognition of individual or professional services in a field of specialty or to a charitable cause.” Regulation 5009 (b)(2)(b) & (b)(2)(c). See A.O. 98-170 (members of the General Assembly are permitted to attend a free legislative orientation session, excluding lunch, offered by Brown University, an “interested person” which received substantial state funding and employed Rhode Island lobbyists, because the orientation fell under Regulation 5009’s exception for “services to assist an official . . . in the performance of official duties and responsibilities).[4] We are also of the opinion that the Petitioner may accept the National Council’s offer to allow the Petitioner to direct a grant of Five Thousand Dollars ($5,000) to a 501(c)(3) organization of his choosing, provided that the Petitioner does not receive any financial benefit, including a tax deduction, by reason of the grant distribution. This is consistent with Regulation 5009, which states that a public official will not be considered to have received a prohibited gift if “it is immediately . . . given to a bona fide charitable organization without benefit accruing to the person subject to the Code of Ethics.” Regulation 5009(e). 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 Other Legal Authority: R.I. Gen. Laws § 42-28.2-8.3 Related Advisory Opinions: A.O. 2006-15 A.O. 99-114 A.O. 99-16 A.O. 98-170 A.O. 98-121 Keywords: Gifts Travel [1] A companion bill, also signed into law, was introduced in the Rhode Island House of Representatives by State Representative, and current House Majority Leader, K. Joseph Shekarchi. Majority Leader Shekarchi is a signatory to this Petitioner’s request for an advisory opinion, having been offered the same award and travel. His advisory opinion is issued separately. [2] https://www.thenationalcouncil.org/about/. [3] “The National Council is at the forefront of efforts to ensure that behavioral health services remain strong and viable. We use our considerable expertise and influence to make sure that legislation, policy, and regulations are aligned with the interests of those you serve. From informing year-round engagement with your elected officials, payers, and administrative agencies to rallying the entire field around key causes at our annual Hill Day in Washington DC, the National Council points the way toward effective grassroots advocacy.” https://www.thenationalcouncil.org/about/membership/member-benefits/. [4] At the time A.O. 98-170 issued, Regulation 5009 did not permit the receipt of gifts of any value from an interested person. Under the current regulation, the complimentary lunch would be permitted if it was valued at Twenty-Five Dollars ($25) or less.