Advisory Opinion No. 2019-20 Rhode Island Ethics Commission Advisory Opinion No. 2019-20 Approved: March 26, 2019 Re: The Honorable Frank A. Ciccone, III QUESTION PRESENTED: The Petitioner, a legislator serving as a member of the Rhode Island Senate, a state elected official, requests an advisory opinion regarding whether he is prohibited by the Code of Ethics from serving as the Chairperson of the Senate Committee on Labor, given that he presently works as a consultant for the Rhode Island Judicial, Professional and Technical Employees’ Local Union 808, and was previously employed as a Field Representative for the Rhode Island Laborers’ District Council and as Business Manager for Local Union 808. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from serving as the Chairperson of the Senate Committee on Labor, notwithstanding that he presently works as a consultant for the Rhode Island Judicial, Professional and Technical Employees’ Local Union 808, and was previously employed as a Field Representative for the Rhode Island Laborers’ District Council and as Business Manager for Local Union 808. The Petitioner currently serves as a member of the Rhode Island Senate and has done so continuously since January of 2003. He served as a member of the Senate Committee on Labor (“Labor Committee”) from 2003 through the end of 2015, and was its Vice Chairperson from 2008 through the end of 2015. The Petitioner was not on the Labor Committee in 2016 and 2017, but the Senate President recently reassigned him to it and appointed him Chairperson. The Petitioner explains that the function of the Labor Committee is to review and consider proposed legislation relating to all aspects of employment within the State of Rhode Island. He offers examples which include, but are not limited to, wages, fair treatment, unemployment benefits, and workers’ compensation benefits. The Petitioner represents that, in his private capacity, he works as a consultant to the Rhode Island Judicial, Professional and Technical Employees’ Local Union 808 (“Local Union 808”), adding that in this role he assists with the negotiation of municipal contracts, as needed. The Petitioner states that he was previously privately employed as a Field Representative for the Rhode Island Laborers’ District Council and as Business Manager for Local Union 808, and that he retired from both those positions in 2014. The Petitioner seeks the guidance of the Ethics Commission regarding whether the Code of Ethics prohibits him from serving as ÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂChairperson of the Labor Committee, given his present and previous employment. The Ethics Commission has previously determined there was no inherent conflict of interest under the Code of Ethics where an individual served on a board before which that individual’s private employer might have a matter, provided the individual recused from participation in any such matter. For example, in Advisory Opinion 98-131, a State Representative was not prohibited from serving on the Board of Bank Incorporation (“Board”), which sat as an appellate board for the decisions of the Department of Business Regulation (“DBR”), notwithstanding his relationship with Alliance Finance, a family owned loan and investment company regulated by the DBR, given the Board’s limited responsibilities and involvement in matters affecting the petitioner’s business. The petitioner was further instructed to recuse from participation in any matter involving Alliance Finance or any other banking institution that was reasonably likely to be a competitor of Allied Finance. See also, A.O. 99-59 (opining that the petitioner was not prohibited from serving on the Board of Examination and Licensing of Telecommunications Systems Contractors, Technicians and Installers (“Board”) while privately employed as the president of Ryan Electric Construction, Inc. (“Ryan”), provided he recused from participation in the Board’s consideration of matters affecting Ryan and/or its financial interests). The Petitioner has described a wide variety of matters that go before the Labor Committee and pertain to all individuals who work in the State of Rhode Island. Consistent with the provisions of the Code of Ethics and the advisory opinions cited above, it is the opinion of the Ethics Commission that there is no inherent conflict of interest in the Petitioner’s service as Chairperson of the Labor Committee and his simultaneous private consulting with Local Union 808.[1] However, the Code of Ethics provides that the Petitioner shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction that is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the Petitioner has reason to believe or expect that he or any family member or business associate, or any business by which he is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). The Ethics Commission has determined that a consultant and the entity for which he performs consulting work are business associates. See A.O. 2000-73 (opining that a member of the Jamestown Planning Commission who, in his private capacity, was a principal in an engineering firm that performed consulting work for Conanicut Marine Services (“Conanicut”) was a business associate of Conanicut). Additionally, the Code provides that the Petitioner shall not use in any way his public office or confidential information received through his holding any public office to obtain financial gain, other than that provided by law, for himself, a business associate or any business by which he is employed. Section 36-14-5(d). Finally, under Commission Regulation 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002), the Petitioner must recuse from participation in any matter if his spouse, dependent child, employer, or business associate appears before his state agency. The instant Petitioner sought an advisory opinion from the Ethics Commission following his election to the Senate in 2002, at which time the Commission opined that he would be prohibited from participating or voting in matters before the Legislature that would directly affect either of his employers at that time, namely, the Rhode Island Laborers’ District Council for whom he was a Field Representative, and Local Union 808 for whom he was Business Manager. See A.O. 2002-74. The Petitioner is held to the same standard today with respect to his business association with Local Union 808, and the advisory opinions upon which the Commission relied in 2002 are no less germane. See A.O. 98-59 (opining that a State Senator who, in his private capacity, worked as a consultant to the Village at Elmhurst, LLC (“The Village”), an assisted living facility, was prohibited from participating and voting on legislation directly relating to the Village/affiliates and resulting in a financial benefit to said entities and/or the Senator as their agent); A.O. 95-20 (opining that a State Representative who was also an employee of the Dorcas Place Parent Literacy Center, a non-profit community-based organization that received funding from the Legislature, could not participate in matters specifically relating to her employer). The Petitioner’s previous employment by the Rhode Island Laborers’ District Council is no bar to his present service on the Labor Committee and does not factor into the analysis involving his present business association. See A.O. 2013-21 (opining that a member of the State Labor Relations Board, a private attorney, was not required to recuse from matters involving his former law client provided that the representation had concluded, that all outstanding legal fees were paid in full, and there was no reasonable likelihood of reestablishing an attorney/client relationship in the foreseeable future). It is worth noting the possibility that a lobbyist for Local Union 808 might appear before the Labor Committee to testify on proposed legislation. The Petitioner is cautioned that, should that occur, he must recuse from participation during such testimony, and from any matters before the Labor Committee and/or the Senate that would likely financially impact him or Local Union 808. See A.O. 2003-2 (opining that State Representative must recuse when his spouse, who was employed as a lobbyist for the Urban League of Rhode Island, appeared before him in is capacity as a committee member). Upon consideration of the Code of Ethics and previous advisory opinions, it is the opinion of the Ethics Commission that the Petitioner, while not prohibited from serving as the appointed Chairperson of the Labor Committee, is prohibited from participating in matters that would directly impact his business associate, Local Union 808. In the event any matter directly impacting his business associate should come before the Petitioner, either in his capacity as Chairperson of the Labor Committee or as a member of the Senate, the Petitioner should utilize the notice and recusal sections provided in section 36-14-6 or seek further guidance from the Ethics Commission. 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: § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Regulation 520-RICR-00-00-1.2.1 Related Advisory Opinions: A.O. 95-20 A.O. 98-59 A.O. 98-131 A.O. 99-59 A.O. 2000-73 A.O. 2002-74 A.O. 2003-2 A.O. 2013-21 A.O. 2019-15 Keywords: Legislator Private employment Recusal [1] The provisions of the Code of Ethics apply equally to members and to officers of a public body. See A.O. 2019-15 (opining that the petitioner’s elevation from a general Town Council member to Council President, Council Vice President, or Council President Pro Tempore would not further restrict the performance of the petitioner’s Town Council duties under the Code of Ethics). Therefore, the Petitioner’s appointment to Chairperson of the Labor Committee places no further restrictions upon him under the Code of Ethics than had he been appointed a member of that committee.