Advisory Opinion No. 2020-45 Rhode Island Ethics Commission Advisory Opinion No. 2020-45 Approved: October 27, 2020 Re: Brett P. Smiley QUESTION PRESENTED: The Petitioner, the Director of the Rhode Island Department of Administration, a state appointed position, who is interested in exploring the possibility of running for Mayor of the City of Providence, requests an advisory opinion regarding whether the Code of Ethics prohibits him from soliciting and receiving campaign contributions from persons who are not state employees or vendors. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Director of the Rhode Island Department of Administration, a state appointed position, who is interested in exploring the possibility of running for Mayor of the City of Providence, is not prohibited by the Code of Ethics from soliciting and receiving campaign contributions from persons who are not state employees or vendors, provided that: the persons solicited are not otherwise the Petitioner’s subordinates as defined under the Code of Ethics; there is no understanding that the campaign contributions would affect any official action by the Petitioner; and that no public time or resources will be utilized by the Petitioner in furtherance of his campaign. The Petitioner is the Director of the Rhode Island Department of Administration (“DOA”) and has been serving in that position since his appointment by Governor Gina M. Raimondo (“the Governor”) in January of 2020. Prior to his appointment, he served as the Chief of Staff to the Governor from September 2016 through January 2020. The Petitioner represents that the DOA provides all state departments and agencies with supportive services such as finance, technology, human resources, facilities, and purchasing. He states that he typically works Monday through Friday, 8:30 a.m. to 4:30 p.m., and that his various responsibilities extend to other state departments and agencies within the Executive Branch. The Petitioner explains that, while his actions impact state employees and vendors, he does not make decisions alone or in a vacuum, and he depends on criteria set forth in the law and on information received from employees which allow him to act in the best interest of the State and its citizens. The Petitioner represents that his position is statutory and unclassified, and that his salary is paid solely with state funds. The Petitioner states that he is interested in exploring the possibility of running for Mayor of the City of Providence during 2022, which necessitates that he begin raising campaign funds. Cognizant of the Code of Ethics and its limitations on certain campaign activities, and in an effort to avoid any conflicts of interestor even the appearance of impropriety, the Petitioner represents that: He will not solicit or accept campaign contributions from any state employees; He will not solicit or accept campaign contributions from any state vendors, including vendors who have submitted bids and/or who have active contracts with the State. Should a donor later seek state business, the Petitioner will recuse himself from any role in the procurement process; He will not solicit or accept campaign contributions based on any understanding that any official action taken in his capacity as the Director of the DOA would be influenced in any manner thereby, whether during the exploration of his candidacy or in his capacity as a candidate; He will publicly disclose all campaign contributions, including those below the reporting thresholds set by the Rhode Island Board of Elections, to evidence his commitment to transparency and the desire to avoid even the appearance of impropriety. Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether the Code of Ethics allows him to solicit and receive campaign contributions from persons who are not state employees or vendors, provided that there is no understanding that such campaign contributions would affect any official action taken by the Petitioner in his public capacity. Under the Code of Ethics, a public official or employee shall not have any interest, financial or otherwise, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, 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 or employee 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). The Code of Ethics also prohibits a public official or employee from using his public office or confidential information received through holding public office to obtain financial gain, other than that provided by law, for himself or any person within his family, his business associate or any business by which he is employed or represents. Section 36-14-5(d). Further, a public official or employee may not solicit or accept any gift, loan, political contribution, reward, or promise of future employment based on any understanding or expectation that his vote, official action, or judgment will be influenced thereby. Section 36-14-5(g). Finally, Commission Regulation 520-RICR-00-00-1.4.4 Transactions with Subordinates (36-14-5011) (“Regulation 1.4.4”)[1] prohibits a public official or employee from soliciting or requesting, directly or through a surrogate, any political contributions from a subordinate for whom, in his official duties and responsibilities, he exercises supervisory responsibilities. Regulation 1.4.4(B). This regulation, however, does not prohibit or limit the First Amendment rights of a subordinate to make political contributions. Id. For the purposes of the prohibition on solicitations, the term “subordinate” includes other employees, contractors, consultants, or appointed officials of the official’s or employee’s agency. Regulation 1.4.4(C). While the above provisions of the Code of Ethics serve to regulate the potential interaction between the Petitioner’s duties as Director of the DOA and his campaign for public office, they do not bar such simultaneous endeavors, provided that requirements of the Code of Ethics cited above are followed. On several occasions, the Ethics Commission has guided the conduct of public officials and employees who were either seeking election to public office or who wished to participate in campaigning and fundraising activities on behalf of political candidates. In Advisory Opinion 2008-3, for example, the Ethics Commission opined that the Solicitor for the City of Providence was not prohibited by the Code of Ethics from campaigning for election to the position of Attorney General of the State of Rhode Island, provided that he did not use public time or resources to assist his campaign, and did not solicit his subordinates to make political contributions, purchase tickets, or otherwise assist in campaign-related events. See also A.O. 2006-41(opining that the Director of Municipal and External Affairs in the Office of the Governor was not prohibited from serving as the Honorary Chair of the Carcieri for Governor Committee (“the Committee”), provided that she did so on her personal time or after business hours; without the involvement of state employees, equipment, or resources; and without the solicitation of her subordinates for the purchase of fundraising tickets and/or other political contributions on behalf of the Committee); A.O. 99-44 (opining that individual members of the Rhode Island Housing and Mortgage Finance Corporation’s Board of Commissioners and staff (“RIHMFC”) could not solicit contributions from entities that did business with that agency except in situations where the RIHMFC members or staff who solicited contributions did not exercise supervisory responsibility or control over the entity(ies) being solicited, and were not acting on behalf of someone who exercised such responsibility). The Ethics Commission has also enforced the provisions of Regulation 1.4.4(B) in a complaint context. For example, in In re: Donald L. Carcieri, Complaint No. 2006-9, the Ethics Commission found that the Respondent, the Governor of the State of Rhode Island, violated now Regulation 1.4.4(B) by mailing at least five (5) separate mailings soliciting campaign contributions from Rhode Island residents, some of whom were state employees appointed by the Respondent and under his direct supervision and control. Likewise, the Ethics Commission found that the Respondent in In re: A. Ralph Mollis, Complaint No. 2006-6, who was the Mayor of the Town of North Providence and a candidate for Secretary of State, violated Regulation 1.4.4(B) by mailing correspondence soliciting campaign contributions from individuals, some of whom were employees of the Town of North Providence. Accordingly, based on the Petitioner’s above-representations, and consistent with the applicable provisions of the Code of Ethics, past advisory opinions issued,and the complaint matters cited above, it is the opinion of the Ethics Commission that the Petitioner is not prohibited from soliciting and receiving campaign contributions from persons who are not state employees or vendors, provided that: the persons solicited are not otherwise the Petitioner’s subordinates as defined herein; there is no understanding that the campaign contributions would affect any official action by the Petitioner in his capacity as the Director of the DOA; and that no public time or resources will be utilized by the Petitioner in furtherance of his campaign. Additionally, all campaign work by the Petitioner must be performed on his own time, and with his own personnel, supplies, and equipment. Because this advisory opinion provides only general guidance as to the application of the Code of Ethics to the facts represented above, the Petitioner is cautioned to be mindful of his responsibility to avoid soliciting or requesting, directly or through a surrogate, any political contributions from a subordinate, not encompassed by his representations above, for whom, in his official duties and responsibilities, he exercises supervisory responsibilities, including contractors, consultants, or officials whom the Petitioner has appointed. The Petitioner is encouraged to seek additional advice from the Ethics Commission in the future if more specific questions regarding his candidacy arise. 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) § 36-14-5(g) § 36-14-7(a) 520-RICR-00-00-1.4.4 Transactions with Subordinates (36-14-5011) Related Advisory Opinions: A.O. 2008-3 A.O. 2006-41 A.O. 99-44 Other Related Authorities In re: Donald L. Carcieri, Complaint No. 2006-9 In re: A. Ralph Mollis, Complaint No. 2006-6 Keywords: Campaign Contributions [1] Formerly Commission Regulation 36-14-5011.