Advisory Opinion No. 2019-34 Rhode Island Ethics Commission Advisory Opinion No. 2019-34 Approved: June 18, 2019 Re: The Honorable Allan W. Fung QUESTION PRESENTED: The Petitioner, Mayor of the City of Cranston, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from filling in as a talk show host at a local radio station. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Mayor of the City of Cranston, a municipal elected position, is not prohibited by the Code of Ethics from filling in as a talk show host at a local radio station, consistent with the provisions herein. The Petitioner is Mayor of the City of Cranston (“City”). He was first elected in November of 2008, and has since served continuously. His current term will end in 2020, and term limits prevent him from further re-election. He represents that he has not declared candidacy for any other office. The Petitioner explains that his mayoral responsibilities are outlined in the City Charter (“Charter”) and include, but are not limited to, the active supervision, direction and control of the activities of all administrative departments and agencies of the City, in accordance with the provisions of the Charter, City ordinances, and State laws. Furthermore, the Petitioner, in certain instances with the advice and consent of the City Council, has the power to appoint heads of departments and members of boards, committees, and commissions. He may also investigate the official conduct of any department, board, commission, office or agency, or officer or employee of the City, except the School Committee and its employees. The Petitioner states that the position of Mayor is full-time, adding that he essentially needs to be available at any hour of the day or night, every day of the week. The Petitioner explains that, although City Hall is open Monday through Friday between the hours of 8:30 a.m. and 4:30 p.m., because he has additional mayoral obligations to fulfill both before and after those hours, he works approximately 70 - 80 hours each week on average and that, aside from an occasional vacation, he has never worked fewer than 40 hours in any given week. The Petitioner represents that, due to the unique circumstances of his work schedule, he does not keep track of his time using a time card or any other formal method. The Petitioner further represents that, as Mayor, he is entitled to take time off from his duties. He explains that, if he is going to take a vacation, he will designate someone in his administration, usually the Director of Administration, to assume the duties of Mayor in his absence, under which circumstances the Petitioner will make himself available by telephone.[1] He adds that he receives a set salary that has not changed since he first assumed his position in 2009. The Petitioner represents that he has engaged in discussions with a local radio station about the possibility of filling in as a guest host when a regular host is on vacation or otherwise unavailable. The Petitioner states that the general duties of a radio talk show host include the preparation and broadcast delivery of content about issues of local and national interest, interviewing guests, and discussing issues with callers and the listening audience. He states that each shift is ordinarily three hours, plus nominal preparation time, and that he would be compensated as an independent contractor. The Petitioner explains that the Charter prohibits any elected officer, for the period of that individual’s term, from holding any other paid position with a city, state or federal government, adding that there is an exemption from this provision for service as a notary public, a member of the military or reserves of the United States or a member of the teaching staff of an educational institution of the state. He further explains that the Charter contains no other prohibition with respect to secondary employment with outside private entities. The Petitioner represents that the City has no contracts with the radio station or its owner. No person subject to the Code of Ethics shall engage in any business, employment, transaction or professional activity which is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if a public official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). The Code of Ethics further prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family member, business associate, or any business by which he is employed or which he represents. Section 36-14-5(d). Finally, the Code of Ethics provides that a public official shall not accept other employment that would impair his independence of judgment as to his official duties or require or induce him to disclose confidential information acquired by him in the course of his official duties. Section 36-14-5(b). In the past, the Ethics Commission has consistently opined that public officials and employees are not inherently prohibited by the Code of Ethics from holding employment that is secondary to their primary public employment or positions subject, however, to certain restrictions and provided that their private employment would neither impair their independence of judgment nor create an interest in substantial conflict with their public duties. See, e.g., A.O. 2017-40 (opining that a Probation and Parole Supervisor for the Rhode Island Department of Corrections was not prohibited by the Code of Ethics from working, in his private capacity, as an adjunct professor at Rhode Island College, provided that all work and preparation for his classes was performed on his own time and without the use of public resources or confidential information obtained as part of his state employment); A.O. 2012-32 (opining that the Acting Director of the Department of Planning and Development for the City of Providence was not prohibited by the Code of Ethics from teaching a course at Brown University, provided that all teaching work was performed on his own time, and he did not use public resources or confidential information obtained as part of his employment with the City; however the petitioner was required to recuse from any matters relating to Brown University that might come before him in his public capacity as Acting Director of the Department of Planning and Development and to refer such matters to his superiors); and A.O. 2006-20 (opining that the Code of Ethics did not prohibit the Superintendent of Communications for the Town of South Kingstown from conducting training seminars for a fee within the state regarding the Rhode Island State Fire Safety Code). The Ethics Commission examines several factors when considering potential conflicts regarding secondary employment. These factors include, but are not limited to, the nexus between the official’s public duties and private employment; whether the employee completes such work outside his or her normal working hours and without the use of public resources; that the employee not appear before his or her own agency; that such work be conducted outside of the areas over which the person has decision-making jurisdiction; and that the employee does not use his or her position to solicit business or customers. See General Commission Advisory No. 2009-4. In the present matter, based on all the representations above, there appears to be no evidence that the Petitioner’s independent contract work as a fill-in radio talk show host would either impair his independence of judgment as the Mayor of Cranston or create an interest in substantial conflict with his public duties. Additionally, based upon the Petitioner’s representations, there appears to be no relationship between his public duties as Mayor and his potential work as a fill-in radio talk show host, nor would he represent his private employer’s interests before the City. Given the unique demands upon his time as Mayor, coupled with the fact that the Petitioner has no standard work hours, he will be required to document any time spent at the radio station, or in preparation therefor, as a way of accounting for the time spent away from his official duties as Mayor while filling in as a talk show host. Further, the Petitioner is prohibited from using public resources or confidential information obtained as part of his official public duties in furtherance of his private duties at the radio station. The Petitioner is advised that he may not use his official position to solicit business or customers for the radio station. Upon consideration of the Code of Ethics, previous advisory opinions, and the facts as represented by the Petitioner, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from accepting this opportunity, consistent with the provisions outlined herein. The Petitioner is advised that this advisory opinion is limited to the question presented regarding occasional fill-in work as a radio talk show host. It is not to be construed as a blanket authorization to accept any type of secondary employment. In the event the Petitioner’s occasional fill-in work on the radio leads to an offer to appear on a more regular basis, he is advised to first seek additional guidance from the 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(b) § 36-14-5(d) § 36-14-7(a) Related Advisory Opinions: A.O. 2017-40 A.O. 2012-32 A.O. 2006-20 General Commission Advisory No. 2009-4 Keywords: Secondary Employment [1] The Petitioner states that, in the event he was to be away from his office for more than ten consecutive days, the City Council President would automatically be charged with assuming all mayoral responsibilities pending his return.