Advisory Opinion No. 2019-71 Rhode Island Ethics Commission Advisory Opinion No. 2019-71 Approved: December 10, 2019 Re: Cynthia Elder QUESTION PRESENTED: The Petitioner, the Chief of the Business Development Office for the Rhode Island Department of Environmental Management, Division of Parks & Recreation, a state employee position, requests an advisory opinion regarding whether she may accept a Jarvi Scholarship offered by the Foundation for Sustainable Parks and Recreation and the Society of Recreation Professionals to cover the cost and expenses of her attendance at the National Association of State Park Foundations Conference in Florida in October of 2020. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Chief of the Business Development Office for the Rhode Island Department of Environmental Management, Division of Parks & Recreation, may accept a waiver of the conference registration fee to attend the National Association of State Park Foundations Conference in Florida in October of 2020. However, the Code of Ethics prohibits the Petitioner from accepting complimentary airfare, local transportation, lodging, and meals. The Petitioner was hired in June of 2019 as the Chief of the Business Development Office for the Rhode Island Department of Environmental Management (“DEM”), Division of Parks and Recreation (“Parks and Recreation”). She explains that the focus of Parks and Recreation is building partnerships, establishing pathways for charitable giving, and enhancing visitor experiences, adding that Parks and Recreation may eventually create a state park foundation. The Petitioner states that in July of this year she applied for a Jarvi Scholarship (“scholarship”) that would have covered a significant portion of the cost and expenses for her to attend the National Association of State Park Foundations Conference (“conference”) in August of 2019. She explains that the scholarship was offered by the Foundation for Sustainable Parks and Recreation and the Society of Recreation Professionals. The Petitioner represents that, after she realized that the scholarship would not be awarded until after the conference in August, her supervisors at DEM decided that she should still attend the conference with the cost and expenses to be borne by DEM. The Petitioner states that the next conference will be held in Florida in October of 2020. She further states that, on August 22, 2019, she received correspondence from the Society of Recreation Professionals advising her that she was being considered for a scholarship to attend the conference in Florida in 2020, after which she updated her previous application accordingly. The Petitioner explains that the application required a budget worksheet identifying the total anticipated expenses; the employer’s contribution which must match 25% of the total scholarship; and the personal contribution from the Petitioner. A breakdown of the expenses are as follows: Registration $ 295.00 Airfare 350.00 Local Transportation 200.00 Lodging 655.00 Meals 400.00 _________ TOTAL EXPENSES: $ 1,900.00 Less: Contribution by DEM ($ 300.00) Contribution by Petitioner ($ 200.00) AMOUNT OF SCHOLARSHIP: $ 1,400.00 AMOUNT OF SCHOLARSHIP: $ 1,400.00 The Petitioner states that on September 3, 2019, she again received correspondence from the Society of Recreation Professionals, this time notifying her that she had been selected for a scholarship to attend the conference in Florida in October of 2020, adding that the award is to the Petitioner as an individual, as opposed to DEM. She notes that attendance at the conference will assist her in the performance of her official duties and responsibilities at DEM. The Petitioner further states that neither the Foundation for Sustainable Parks and Recreation nor the Society of Recreation Professionals has any direct financial interest in any decision that she or DEM is authorized to make, nor does either organization have registered lobbyists in Rhode Island. The Petitioner offers additional details regarding the scholarship and the parties involved in its sponsorship. She identifies Margaret Bailey (“Ms. Bailey”), the Vice-President of the Society of Recreation Professionals, as a member of the committee which selected the recipients of the scholarship and states that it was Ms. Bailey who recommended to DEM that someone from its Parks and Recreation staff apply. She adds that the correspondence she received from the Society of Recreation Professionals on August 22, 2019 and September 3, 2019 had come from Ms. Bailey. The Petitioner states that Ms. Bailey, in her private capacity is Vice-President of CHM Government Services (“CHM”), and that CHM was hired by DEM earlier this year as a consultant to advise DEM regarding the recreation and hospitality aspects of the Rhode Island parks system, for which Ms. Bailey provided a written report. The Petitioner further states that DEM anticipates expending additional funds on a project for which CHM is again expected to be retained, and for which the Managing Director of CHM is expected to provide services as an expert. As a state employee who is subject to the Code of Ethics, the Petitioner is prohibited from accepting or receiving any gifts of cash, or any goods or services valued at more than twenty-five dollars ($25), from a single interested person. Commission Regulation 520-RICR-00-00-1.4.2 Gifts (36-14-5009) (“Regulation 1.4.2”). 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 to participate in making, as part of her official duties. Regulation 1.4.2(C). A “single interested person” shall include all employees or representatives of an individual, business, organization or entity. Regulation 1.4.2(B)(1). The prohibitions in Regulation 1.4.2 do not apply if the gift or other thing of value will assist an official or employee in the performance of her official duties and responsibilities. Regulation 1.4.2 (B)(2)(b). Because the Petitioner is being offered items (airfare, local transportation, lodging, and meals) that are valued well in excess of twenty-five dollars ($25), the key issue in determining whether Regulation 1.4.2 applies is whether either of the offering organizations is an “interested person.” In two somewhat analogous companion Advisory Opinions, 2017-8 and 2017-7, the Ethics Commission opined that a State Representative and a State Senator were each permitted by the Code of Ethics to accept waivers of their registration fees for a conference that they would be attending in Seattle, Washington at which each would be receiving awards. However, both petitioners were prohibited by the Code of Ethics from accepting complimentary airfare, hotel accommodations, awards dinner tickets, or reimbursement for per diem expenses. The reasoning behind each of these advisory opinions was that the National Council for Behavioral Health, as the sponsor of the conference, was determined to be an interested person. One year earlier, the petitioners had introduced legislation, which was ultimately signed into law, requiring that police officers receive training in handling complaints involving mental health and substance abuse emergencies. The National Council for Behavioral Health operated a fee-based program that provided certified training to those who come into contact with persons experiencing a mental health crisis, the very subject of legislation introduced by the petitioners. Contra A.O. 2015-46 (opining that a Revenue Policy Analyst for the Rhode Island Department of Revenue was permitted to accept an offer by the Pew Charitable Trusts (“Pew”) to pay for her travel expenses to attend a roundtable discussion in Washington, D.C., concerning the evaluation of economic development incentives, provided that Pew did not have a direct financial interest in decisions that the Petitioner was authorized to participate in as part of her official duties). In the instant matter, the Petitioner states that neither the Foundation for Sustainable Parks and Recreation nor the Society of Recreation Professionals has any direct financial interest in any decision the Petitioner or DEM is authorized to make, nor does either organization have registered lobbyists in Rhode Island. Ms. Bailey, however, who in her private capacity as Vice-President of CHM performed work for DEM earlier this year after CHM was hired by DEM as a consultant, and whose colleague from CHM is expected to provide services as an expert when CHM is again retained by DEM for an upcoming project, is an interested person as to the Petitioner and to DEM. Further, Ms. Bailey, in her capacity as Vice-President of the Society of Recreation Professionals, was a member of the committee which selected the recipients of the scholarship and in fact recommended to DEM that someone from its Parks and Recreation staff apply. Accordingly, although the provisions contained in Regulation 1.4.2 apply to the subject scholarship, the Petitioner is permitted under Regulation 1.4.2 (B)(2)(b) to accept waiver of the registration fee for the conference because the conference will assist her in the performance of her official duties and responsibilities. However, the Petitioner is prohibited by the Code of Ethics from accepting or receiving complimentary airfare and local transportation, lodging, and meals. 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: 520-RICR-00-00-1.4.2 Gifts (36-14-5009) Related Advisory Opinions: A.O. 2017-8 A.O. 2017-7 A.O. 2915-46 Keywords: Gifts Interested Person