Advisory Opinion No. 2019-38 Rhode Island Ethics Commission Advisory Opinion No. 2019-38 Approved: July 16, 2019 Re: The Honorable Lauren H. Carson QUESTION PRESENTED: The Petitioner, a legislator serving in the Rhode Island House of Representatives, a state elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from working, through her private employment with the Town of Warren, on a project that is funded through a grant administered by the Rhode Island Department of Environmental Management. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a legislator serving in the Rhode Island House of Representatives, a state elected position, is not prohibited from working, through her private employment with the Town of Warren, on a project that is funded through a grant administered by the Rhode Island Department of Environmental Management. The Petitioner is a member of the Rhode Island House of Representatives. In her private capacity she is employed by the Eastern Rhode Island Conservation District (“ERICD”),[1] which according to its website is a non-profit organization “that functions as a facilitator for meeting the needs of the local land user in the conservation of soil, water and other related natural resources.”[2] The Petitioner states that the ERICD is one of approximately 35 organizations that make up the Rhode Island Green Infrastructure Coalition (“Coalition”), a group of people and organizations who have joined together to promote and construct pathways for rainwater, melting snow and other run-off so that it avoids paved areas where it may pick up contaminants that will infiltrate the earth and urban waterways. The Coalition is funded primarily through grants from public and private sources. The Petitioner represents that in 2016, as a member of the House of Representatives, she voted to approve the state budget which included a $35 million Green Economy Bond (“2016 Green Economy Bond”) to support investments in water quality, land cleanup, farmland, recreational facilities, and open space. The 2016 Green Economy Bond was then put on the ballot and approved by the Rhode Island voters during the November 2016 general election. The Petitioner states that the bond includes $6.4 million in matching grants available through the Rhode Island Department of Environmental Management (“RIDEM”) to help communities reduce flooding, control stormwater and strengthen Rhode Island’s climate resilience. The Petitioner states that the Town of Warren (“Town”) has received a grant made available through the RIDEM from the 2016 Green Economy Bond to construct a new vegetated open channel swale and restore an existing open channel swale that will store and infiltrate storm water. She states that because the Town has outsourced the community engagement aspect of the project to the ERICD, the Petitioner, as an employee of the ERICD, will perform work on a project funded by the grant from the Green Economy Bond. The Petitioner notes that her work would be limited to outreach and education and to providing information to the public on the importance of stormwater management and flood mitigation and to communicating to the public the goals and purpose of the project. Based on this set of facts, the Petitioner seeks guidance as to whether the Code of Ethics prohibits or limits her participation in the project, given its funding source and her position in the Rhode Island House of Representatives. The Code of Ethics prohibits a public official from using her public office or confidential information received through her holding public office to obtain financial gain, other than that provided by law, for herself, a family member, employer or business associate. R.I. Gen. Laws § 36-14-5(d). The Code of Ethics also prohibits a person subject to the Code from having any interest or engaging in any business or employment which is “in substantial conflict with the proper discharge of her duties” in the public interest and of her responsibilities as prescribed in the laws of this state. Section 36-14-5(a). A public official is also prohibited from accepting other employment that will impair her independence of judgment as to her official duties or require or induce her to disclose confidential information acquired in the course of her official duties. Section 36-14-5(b). Finally, a state public official who exercises fiscal or jurisdictional control over a state agency is not permitted to act, for compensation, as an agent or attorney before such agency on behalf of any person or organization in a matter in which the state has an interest or is a party. Commission Regulation 520-RICR-00-00-1.4.1 Acting as Agent or Attorney for Other than State or Municipality (36-14-5008). The Ethics Commission has previously issued an advisory opinion to the instant Petitioner under analogous facts involving grant funds distributed from the same 2016 Green Economy Bond. See A.O. 2017-35. At the time of that advisory opinion, the Petitioner was employed by the Rhode Island Clean Water Action, another organization within the Coalition. The facts in that advisory opinion were such that the Aquidneck Island Planning Commission (“AIPC”) intended to submit a grant proposal to the RIDEM for approximately $300,000 in funding made available by the 2016 Green Economy Bond to help reduce stormwater runoff on Aquidneck Island. The AIPC’s grant application proposed to outsource the community engagement aspect of the project to the Coalition and its member organizations, including the Petitioner’s then employer, Clean Water Action. The Petitioner explained that, if approved, under the AIPC’s proposal, several organizations, including her employer, would receive a total of approximately $25,000 in grant funds and, as an employee of Clean Water Action, the Petitioner would perform work on a project funded by the grant. The Commission opined that the Code of Ethics did not prohibit the Petitioner from continuing her employment with Clean Water Action to perform work on a project proposed by the AIPC funded by the 2016 Green Economy Bond and administered by the RIDEM. The Commission reasoned that there was no indication that the Petitioner would take any official action as a legislator to direct RIDEM grant funds to her private employer; that the Petitioner did not seek to act as an agent or attorney before the RIDEM in a matter in which the state had an interest or was a party; and that there was nothing to indicate that the Petitioner’s work on the project would impair her independence of judgment as to her official duties in the House of Representatives or create a potential for her to use public resources or confidential information to benefit herself or her employer. See also A.O. 2004-22 (opining that a State Senator who was a dairy farmer could apply for and receive funding under the Forest Legacy Program administered by the RIDEM and funded by the United States Forest Service and private sources, given that the petitioner was not involved in establishing the RIDEM’s selection criteria for participants and advising him to recuse from any future matters in the legislature, if any, involving the Forest Legacy Program); A.O. 2007-25 (opining that a state legislator could accept consulting work from a non-profit organization that had received, and could continue to receive, legislative grants, provided that she recused from participating in any legislative decision-making relative to awarding such grants). Here, the source of the grant funds at issue is the 2016 Green Economy Bond that was approved by Rhode Island voters as a ballot measure. The House of Representatives has no ongoing role in the administration or awarding of the grant funds. Based on these and other facts represented by the Petitioner, it is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner from performing work on behalf of the ERICD on the Town’s project funded by a grant administered by the RIDEM. There is no indication that the Petitioner will take any official action as a legislator to direct RIDEM grant funds to her private employer. The Petitioner does not seek to act as an agent or attorney before the RIDEM in a matter in which the state has an interest or is a party. Furthermore, there nothing to indicate that the Petitioner’s work on the project would impair her independence of judgment as to her official duties in the House of Representatives, or create a potential for her to use public resources or confidential information to benefit herself or her employer. 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(c) § 36-14-5(d) 520-RICR-00-00-1.4.1 Acting as Agent or Attorney for Other than State or Municipality (36-14-5008) Related Advisory Opinions: A.O. 2017-35 A.O. 2007-25 A.O. 2004-22 Keywords: Private Employment [1] The Petitioner’s employment with the ERICD began on January 1, 2019. [2] http://www.easternriconservation.org/about.htm (last accessed June 21, 2019)