Advisory Opinion No. 2021-3 Rhode Island Ethics Commission Advisory Opinion No. 2021-3 Approved: January 12, 2021 Re: Jessica Leah DeMartino QUESTION PRESENTED: The Petitioner, the Director of Social Services in the Town of Exeter, a municipal elected position, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places upon her in performing her public duties, given that she is privately employed as a grant writer for the Rhode Island Center Assisting Those in Need, a food pantry located in the Town of Charlestown. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Director of Social Services in the Town of Exeter, a municipal elected position, who in her private capacity is employed as a grant writer for the Rhode Island Center Assisting Those in Need, a food pantry located in the Town of Charlestown, is prohibited by the Code of Ethics from taking any non-ministerial official actions in her role as Executive Director of Social Services that will financially impact her private employer. In November of 2020, the Petitioner was elected to a two-year term as the Director of Social Services (“Director”) in the Town of Exeter (“Town” or “Exeter”). She identifies as her primary responsibility connecting Town residents in need of food with available local and state resources. She adds that, if money and/or gift card donations are received by her office, she distributes them to Town residents in need. The Petitioner states that she will most likely do some grant writing and distribute some grant funds in her capacity as Director. She represents that she works approximately fifteen hours each week, makes her own hours, and receives a stipend from the Town. She states that she reports to the Town Clerk but works alone. The Petitioner informs that, in her private capacity, she has been employed part-time since September of 2020 as a grant writer for the Rhode Island Center Assisting Those in Need (“RICAN”), a private non-profit agency and food pantry located in the Town of Charlestown which serves residents throughout South County, including Exeter. She states that RICAN serves approximately 7,000 people each year, roughly 2% or 140 of whom are Exeter residents. The Petitioner explains that Exeter has one food pantry, adding that it is run by a local church and is only open once per month, by appointment. The Petitioner represents that, when people come to her as Executive Director of Social Services seeking assistance when the food pantry in Exeter is unavailable to them, she is a resource for alternatives. She states that she keeps pamphlets in her office identifying area food pantries. The Petitioner explains that some pamphlets are specific to individual food pantries, including RICAN,[1] while other pamphlets identify several area food pantries, also including RICAN. The Petitioner states that, ultimately, a client will decide which alternative to the food pantry in Exeter he or she will visit. The Petitioner describes among her duties at RICAN: research, writing, and submitting grant proposals which primarily focus on the issue of food insecurity, to various corporations, private family donors, and state and federal agencies. She states that the award of grant funds to RICAN may depend upon the number of people served by the agency. The Petitioner states that she would not have the opportunity to identify herself as the Director of Social Services in Exeter on a grant application written on behalf of RICAN, nor would she do so if that opportunity existed. She further states that she would not have occasion to appear before the Town in her capacity as a grant writer for RICAN, nor would she do so if that opportunity existed.[2] The Petitioner represents that, to the best of her knowledge, Exeter and RICAN do not compete for the same grants, adding that Exeter has limited grant opportunities. The Petitioner offers that she loves her work in Exeter because it puts her in touch with people while helping them. She states that her work at RICAN, while important, is limited to using a computer to apply for grants. The Petitioner states that she thought that the two positions would complement one another nicely. It is in the context of these facts that the Petitioner seeks guidance from the Ethics Commission regarding what limitations, if any, the Code of Ethics places upon her in her public capacity in light of her private employment. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if a public official has reason to believe or expect that she, any person within her family, her business associate, or any business by which she is employed will derive a direct monetary gain, or suffer a direct monetary loss, by reason of her official activity. Section 36-14-7(a). A public official has reason to believe or expect a conflict of interest exists when it is “reasonably foreseeable,” that is, when the probability is greater than “conceivably,” but the conflict of interest is not necessarily certain to occur. Commission Regulation 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001). Additionally, section 36-14-5(b) of the Code of Ethics provides that a public official may not accept other employment which would impair her independence of judgment or require her to disclose confidential information acquired in the course of her official duties. Further, a public official is prohibited from using her public position to obtain financial gain, other than that provided by law, for herself, any person within her family, her business associate, or any business by which she is employed or which she represents. Section 36-14-5(d). Here, the Petitioner has represented that opportunities for RICAN to receive grant funding can be reasonably expected to depend upon the number of people who benefit from RICAN programs, including Exeter residents who constitute a mere 2% of the 7,000 people RICAN serves annually. Accordingly, based upon the Petitioner’s representations, the application of the relevant provisions of the Code of Ethics, and consistent with prior advisory opinions issued, it is the opinion of the Ethics Commission that the Petitioner is prohibited from taking official action in matters that financially impact her private employer including, but not limited to, directing Exeter residents who are in need of an alternative to the Exeter food pantry either to or away from RICAN. See A.O. 2019-28 (opining that a member of the Providence City Council, who in her private capacity was an attorney, was prohibited from participating in City Council matters that financially impacted the law firm by which she was employed); A.O. 2018-60 (opining that a member of the Burrillville Town Council was prohibited from participating in matters that involved or impacted the non-profit community health center by which she was employed). However, were RICAN to appear on a list of all food pantries available to Exeter residents, and be presented in such a manner that the Petitioner is neither advocating for nor against a client’s selection of RICAN as a food pantry, a violation of the Code of Ethics could be avoided. For example, were RICAN to be identified as one of all food pantries available to Exeter residents, either listed alphabetically or by location in proximity to the Petitioner’s office, the inclusion of RICAN as a source of food assistance for her clients would be a ministerial act on the part of the Petitioner, as it would not involve discretion or decision-making on her part. Finally, based upon the Petitioner’s description of her public duties, as well as those associated with her private employment, there is no indication that the Petitioner’s work for RICAN would impair her independence of judgment in her role as Director of Social Services in Exeter or involve the disclosure of confidential information acquired during the course of those duties to obtain pecuniary gain for either herself or her employer. Nevertheless, in the event, however unlikely, that the Petitioner has an opportunity to apply for a grant in her capacity as the Director of Social Services for which it is reasonably foreseeable that RICAN might apply, the Petitioner is advised to seek further guidance from the Ethics Commission. 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) § 36-13-7(a) 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001) Related Advisory Opinions: A.O. 2019-28 A.O. 2018-60 Keywords: Conflict of Interest Private Employment