Advisory Opinion No. 2020-21 Rhode Island Ethics Commission Advisory Opinion No. 2020-21 Approved: April 7, 2020 Re: The Honorable Joshua J. Giraldo QUESTION PRESENTED: The Petitioner, a member of the Rhode Island House of Representatives, a state elected position, who is also the Chief of Staff to the Mayor of the City of Central Falls, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from entering into a personal service contract with a public relations and communications firm. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Rhode Island House of Representatives, a state elected position, who is also the Chief of Staff to the Mayor of the City of Central Falls, a municipal appointed position, is not prohibited by the Code of Ethics from entering into a personal service contract with a public relations and communications firm, provided that all such work is performed on his own time and without the use of public resources or confidential information obtained as part of his duties, either as a member of the Rhode Island House of Representatives or as the Chief of Staff to the Mayor of the City of Central Falls. The Petitioner was elected, in a March 3, 2020 special election, to the Rhode Island House of Representatives. The Petitioner has also been the Chief of Staff to the Mayor of the City of Central Falls (“Mayor”) since 2015. In his private capacity, he has been offered a personal services contract with O’Neill and Associates, a public relations and communications firm, to conduct community outreach on behalf of one of its clients, PepsiCo, Inc. (“PepsiCo”), a multinational food, snack, and beverage corporation. The Petitioner explains that his duties would include screening various 501(c)(3) organizations in Rhode Island, Connecticut, and Massachusetts for PepsiCo grants eligibility, educating such organizations regarding mini grants available to them through PepsiCo, and conducting community outreach and engagement through various community events and tours of PepsiCo’s various plants and facilities. The Petitioner represents that his private duties would require him to work fifteen to twenty hours per month and that those duties would be performed on his own time, without the use of public resources. The Petitioner states that the personal service contract does not involve lobbying or advocacy in Rhode Island, Massachusetts, or Connecticut. He further states that the Rhode Island Beverage Association could potentially lobby the General Assembly on matters impacting PepsiCo. However, the Petitioner represents that, should any matter be heard or considered by the House of Representatives that would involve or impact O’Neill and Associates and/or PepsiCo, he would recuse. Previously, this Petitioner requested and received Advisory Opinion 2017-48 from the Ethics Commission, at which time the Petitioner had asked whether the Code of Ethics prohibited him from accepting the same personal service contract with O’Neill and Associates, given that he was the Chief of Staff to the Mayor. In that Advisory Opinion, the Ethics Commission noted that it did not appear that the Petitioner’s private employment would be in substantial conflict with the exercise of his public duties. The Ethics Commission concluded that the Code of Ethics did not prohibit the Petitioner from working in his private capacity as an independent contractor for O’Neill and Associates conducting community outreach on behalf of PepsiCo, provided that all work was performed on his own time and without the use public resources or confidential information obtained as part of his public employment. That prior personal service contract expired on November 30, 2019, and he represents that he opted to seek an advisory opinion from the Ethics Commission prior to extending or entering into a new contract, given his new position as a member of the House of Representatives. Under the Code of Ethics, a public official is prohibited from accepting other employment that will either impair his independence of judgment as to his official duties or employment, or induce him to disclose confidential information acquired by him in the course of his official duties. R.I. Gen. Laws § 36-14-5(b). A public official may not participate in any matter in which he has an interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature that is in substantial conflict with the proper discharge of his duties or employment in the public interest. Section 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, his business associate or his employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Finally, a public official may not use his public office for pecuniary gain, other than as provided by law, for himself, his family member, his employer, his business associate, or a business that he represents. Section 36-14-5(d). The Ethics Commission has consistently opined that public officials and employees are not inherently prohibited by the Code of Ethics from holding private positions in addition to their primary public employment or positions subject, however, to certain restrictions, and provided that their private positions will neither impair their independence of judgment nor create an interest in substantial conflict with their public duties. The Ethics Commission has also required that (1) the public officials or employees’ public duties are not directly related to their private duties; (2) they complete their private work outside of their normal public working hours; (3) they do not appear before their own public agencies; (4) their private work is performed without the use of public resources, and (5) they do not use their public positions to solicit business or customers. See GCA 2009-4; A.O. 2019-27 (opining that a Motor Vehicle Operator Examiner for the Division of Motor Vehicles (“DMV”) was not prohibited by the Code of Ethics from accepting employment as a Course Administrator for the Driver Retraining Program at the Community College of Rhode Island, provided that all work was performed on his own time and without the use of public resources or confidential information obtained as part of his state employment at the DMV); A.O. 2016-37 (opining that a certified appraiser with the City of Providence Tax Assessor’s Office was not prohibited by the Code of Ethics from working in his private capacity as a real estate salesperson, provided that all work was performed on his own time, without the use of public resources or confidential information obtained as part of his public employment, that he did not use his public position to promote his private employment, and that he did not list his public position as part of the advertisement of his work as a real estate salesperson). In the present matter, based upon the Petitioner’s representations above, it does not appear that the Petitioner’s private employment would be in substantial conflict with the exercise of his public duties either as the Chief of Staff to the Mayor or as a member of the House of Representatives. Accordingly, the Code of Ethics does not prohibit the Petitioner from entering in his private capacity into a personal service contract with O’Neill and Associates to conduct community outreach on behalf of PepsiCo, provided that all work is performed on his own time and without the use of public resources or confidential information obtained as part of his public duties. The Petitioner is also advised to either recuse himself or seek further guidance from the Ethics Commission if matters relating to or impacting O’Neill and Associates, PepsiCo, or his private employment come before him in either of his public positions. The Petitioner shall further recuse from participating in discussions and decision-making in matters where O’Neill and Associates or PepsiCo, or someone authorized by those entities to act on their behalf, appears before the Petitioner in either of his public positions. Any notice of recusal must be filed with the Ethics Commission consistent with section 36-14-6. 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) 36-14-6 36-14-7(a) Related Advisory Opinions: A.O. 2019-27 A.O. 2017-48 A.O. 2016-37 GCA 2009-4 Keywords: Private Employment Recusal