Advisory Opinion No. 2021-17

Rhode Island Ethics Commission

Advisory Opinion No. 2021-17

Approved: March 16, 2021

Re:  The Honorable Mary Ann Shallcross Smith

QUESTION PRESENTED:

The Petitioner, a legislator serving as a member of the Rhode Island House of Representatives, a state elected position, requests an advisory opinion regarding whether she may participate in the General Assembly’s discussions and vote on legislation that would eliminate the cost of obtaining a criminal-records check required for employment with child care providers, given that the Petitioner owns and/or manages a number of child care centers in Rhode Island and voluntarily reimburses the applicants she hires for the cost of obtaining a criminal-records check. 

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a legislator serving as a member of the Rhode Island House of Representatives, a state elected position, may participate in the General Assembly’s discussions and vote on legislation that would eliminate the cost of obtaining a criminal-records check required for employment with child care providers, notwithstanding that the Petitioner owns and/or manages a number of child care centers in Rhode Island and voluntarily reimburses the applicants she hires for the cost of obtaining a criminal-records check because, notwithstanding the Petitioner’s choice to voluntarily reimburse applicants for such fees, the direct financial impact of the legislation is upon the applicants rather than the child care centers at which they seek employment. 

The Petitioner was elected to the Rhode Island House of Representatives in November of 2020 and represents the 46th District in Lincoln.  In her private capacity, the Petitioner has owned and operated a number of child care centers since 1972.  She states that she currently owns 10 for-profit licensed child care centers, and manages another 6 nonprofit licensed child care centers, all of which are located in Rhode Island.  The Petitioner represents that, in the 1980s, legislation was passed in Rhode Island requiring any person seeking employment in a “family daycare home,” “group family daycare home,” or in a “child daycare center” to obtain a criminal-records check, including fingerprints (“background check”), prior to the start of employment.  She further represents that, pursuant to the legislation, all child care staff applicants were able to obtain background checks at no cost at either local police departments or the state police barracks.  The Petitioner states that two years ago the legislation was amended to add the Office of the Attorney General (“AG’s Office”) to the list of agencies providing background checks.  She informs that, while the local and state police continued to provide background checks at no cost, the AG’s Office charges $40 - $45 for background checks, the cost of which is to be borne by the applicant and/or the requesting agency.  The Petitioner explains that, because of the COVID-19 pandemic, local police departments have been restricting access to police stations and asking applicants to obtain their background checks at the AG’s Office.

The Petitioner represents that some child care providers, including herself and the owners of the child care centers she manages, have chosen to reimburse applicants they hire for the expenses incurred in obtaining the background checks necessary for their employment.  The Petitioner states that she was approached by fellow child care providers who expressed concern that some applicants seeking child care employment are reluctant to apply to positions with child care providers who do not reimburse for expense incurred for obtaining background checks, and who wish to see the current legislation amended to eliminate the cost for the background checks performed at the AG’s Office.  The Petitioner informs that, as a result, she sponsored a bill that, if passed, will remove the cost of background checks for all applicants, regardless of where the applicants go for their background checks.  The Petitioner explains that the amendment will indirectly impact all child care providers who reimburse the applicants they hire for the costs associated with their background checks.  The Petitioner states that, according to information obtained from the Rhode Island Department of Children, Youth, and Families (“DCYF”), there are approximately 400 child day care centers and approximately 400 group family day care homes and family day care homes, combined.  Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether she may participate in the General Assembly’s discussions and vote pertaining to the proposed amendment to the legislation that would eliminate the costs associated with background checks for persons seeking child care employment.   

Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her duties or employment in the public interest.  R.I. Gen. Laws § 36-14-5(a).  A public official will have an interest in substantial conflict with her official duties if she has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of her official activity, to the official herself, her family member, her business associate, her employer, or any business that she represents.  Section 36-14-7(a).  Additionally, section 36-14-5(d) prohibits a public official from using her position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself, her family member, her business associate or her employer.

In order to determine whether the above provisions of the Code of Ethics are implicated, the Ethics Commission must ascertain whether the Petitioner, a member of her family, her business associate or her employer will be financially impacted by the official action that is under consideration.  If a direct financial impact, be it positive or negative, is not reasonably foreseeable, then the Petitioner is not required by these provisions of the Code of Ethics to recuse from participation in discussions and voting on the issue.  See A.O. 2019-25 (opining that a member of the Cranston City Council could participate in City Council discussions and voting relative to a proposed ordinance that would ban the use of plastic bags by Cranston business establishments, notwithstanding that the petitioner owned and operated a restaurant in Cranston, given the petitioner’s representations that the proposed ordinance’s ban on plastic bags would have no impact on his current operations); A.O. 2012-2 (opining that an Exeter Town Council member, who was also a licensed firearms dealer, could participate in the Town Council’s discussions and voting on a resolution asking the General Assembly to change the state law regarding municipal licensing of concealed weapons because his business as a firearms dealer was not directly affected by the ability of the Town to issue permits to carry a concealed weapon).  Here the direct financial impact of the Petitioner’s proposed participation in the General Assembly’s discussions and vote on the proposed amendment to the legislation would be upon all applicants seeking employment in a “family daycare home,” “group family daycare home,” or in a “child daycare center,” and not necessarily upon the child care providers who hire those applicants.  There would be an indirect financial impact upon child care providers, such as the Petitioner and the owners of the nonprofit child care centers that the Petitioner manages, who choose to reimburse the applicants they hire for the cost of obtaining a necessary background check.

Even if the impact on the child care providers who choose to reimburse the applicants they hire for the cost of obtaining a background check necessary to their employment were direct, based upon the foregoing representations, such impact would likely be substantially the same as that upon all similarly situated child care providers in Rhode Island, thereby justifying the application of the class exception found in section 36-14-7(b) of the Code of Ethics.[1]  See, e.g., A.O. 2018-31 (applying the class exception and opining that a legislator serving in the Rhode Island Senate, who in her private capacity was an attorney, could participate in the legislative process regarding proposed legislation to eliminate the statute of limitations applicable to civil actions alleging sexual abuse, notwithstanding that her private law office represented one or two clients who would potentially benefit from the law, should it pass). 

Accordingly, based upon the Petitioner’s representations, a review of the applicable provisions of the Code of Ethics, and consistent with prior advisory opinions, it is the opinion of the Ethics Commission that the Petitioner may participate in the General Assembly’s discussions and vote on the proposed amendment to the legislation.

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)
§ 36-14-7(a)
§ 36-14-7(b)

Related Advisory Opinions
A.O. 2019-25
A.O. 2018-31
A.O. 2012-2

Keywords
Class Exception
Financial Interest