Advisory Opinion No. 2000-49

Re: The Honorable Charles J. Fogarty

QUESTION PRESENTED

The petitioner, the Lieutenant Governor, a state elected position, requests an advisory opinion as to whether he may send a letter of support for funding on behalf of a private non-profit organization to a quasi-public corporation.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Lieutenant Governor, a state elected position, may send a letter of support for funding on behalf of a private non-profit organization to the Rhode Island Health and Educational Building Corporation (RIBEHC), a quasi-public corporation, provided that he does so in his capacity as a private citizen and that he subsequently recuses on matters that come before him as Lieutenant Governor or as President of the Senate affecting RIBEHC.

Under the Code of Ethics, the petitioner may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). Additionally, the petitioner is prohibited from using his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, a family member, a business associate, or an employer. See R.I. Gen. Laws § 36-14-5(d). This provision, however, does not prohibit public officials from using their own time, resources or private employment for private fundraising activities; provided, however, that there is no intersection between the private solicitations and the official's public responsibilities. We note that Commission Regulation 5008 is inapplicable since the petitioner is not acting for compensation in this matter.

The petitioner is the Lieutenant Governor and the President of the State Senate. He has been asked to send a letter of support for funding to the Rhode Island Health and Education Building Corporation (RIBEHC), a quasi-public corporation, on the behalf of the Northwest Health Center, a non-profit health agency. The RIBEHC has legislation pending before the General Assembly and, presumably, would be affected by legislation in subsequent legislative sessions as well.

In past opinions, the Ethics Commission has opined that a public official could participate in fundraising for the benefit of the public agency or a non-profit agency so long as it was a broad-based solicitation and not a solicitation that only targeted persons/businesses doing business with the public agency. However, we have also advised that if the time came when the public official could exercise discretion over the person who had been solicited, whether he/she contributed or not, then the official likely would be required to recuse on such matter or seek further advice of the Commission. See A.O. 98-163, A.O. 98-140, A.O. 99-15, A.O. 99-139.

An additional factor concerns the connection between the public official/solicitor and the organization on whose behalf he/she is soliciting. For example, in Advisory Opinion 98-63, the Commission advised the State Police Colonel that he could sign his name in his official capacity to a letter on MADD stationery requesting funding since as honorary chair he was not a business associate of the non-profit organization, its purposes converged with the State Police’s duties and responsibilities relating to maintaining roadway safety and State Police efforts to reduce the incidence of drunk driving. But see A.O. 94-09(prohibiting a public official from raising funds for a non-profit organization where the fundraising involved soliciting from business entities with which he was connected through the awarding of public contracts); and A.O. 88-54(concluding that full time employee of the Rhode Island Department of Mental Health, Retardation and Hospitals could simultaneously serve as Chair of a non-profit advocacy group since, inter alia, there is no connection between the public employee's duties and the state funds the advocacy group may receive to assist its cause).

Here, the intended solicitation involves a non-profit organization and, therefore, the solicitation is not for a public purpose. Additionally, the petitioner serves on its Board of Directors. The Commission has previously concluded that members of boards of directors of non-profit or for-profit organizations are "business associates" as defined by the Code at R.I. Gen. Laws § 36-14-2(3). Therefore, the petitioner may not use his position to financially benefit his business associate. See A.O. 98-108 (concluding that a State Senator may not submit a legislative grant for the Alms for Animals, a tax exempt organization, given that she is a member of its Board of Directors). However, the Code of Ethics does not prevent the petitioner, as a private citizen, from expressing his own views including whether a particular entity should receive state funds. (The petitioner may reference his position in the letter, but may not write the letter in his official capacity.) Given the petitioner’s position, he has authority over the agency solicited through his participation in legislation. By holding out the possibility of his participation in the legislation while at the same time seeking funding for a private concern, of which he is a business associate, may influence the quasi-public agency’s decision in that matter. Therefore, if the petitioner decides to solicit RIBEHC, he is required to recuse on matters affecting RIBEHC and to complete a conflict of interest statement, sending a copy to the Ethics Commission in accordance with Section 6 of the Code of Ethics.

Code Citations:

36-14-5(a)
36-14-5(d)

Related Advisory Opinions:

99-150
99-139
98-140
98-108
97-78
96-28
95-73
95-42
94-9
88-54

Keywords:

Non-profit Boards
Solicitation