Advisory Opinion No. 2001-59

Re: Kenneth M. Bianchi

QUESTION PRESENTED

The petitioner, Executive Director of the Rhode Island Turnpike and Bridge Authority, a state employee position, requests an advisory opinion as to whether the Authority may solicit donations from its vendors and others in the community to help defray the costs of a post-conference historical and technical tour of Rhode Island.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Rhode Island Bridge and Turnpike Authority from soliciting donations from its vendors and others in the community to help defray the costs of a post-conference historical and technical tour of Rhode Island.

The petitioner advises that in September 2001 the Rhode Island Turnpike and Bridge Authority will host a group of engineers and officials from the International Bridge, Turnpike and Tunnel Association (IBTA) for a post-conference historical tour of Providence, Newport and Rhode Island’s signature bridges. The tour will follow the IBTA’s Annual Meeting & Exhibition in Boston. He represents that the Authority wishes to solicit its vendors, as well as others in the community, to help defray the costs of the tour. The broad-based solicitation would be on behalf of the Authority and not benefit any individual personally. He indicates that donations solicited would be used to pay for the cost of mailings, brochures, bus transportation, a reception at the Newport Art Museum, and various amenities associated with a breakfast and lobster bake to be held at the base of the Pell Bridge and Fort Getty.

Under the Code of Ethics, a public official 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, or an employer. See R.I. Gen. Laws § 36-14-5(d). He may not solicit or accept a gift or certain contributions with the understanding that the official’s vote, official action, or judgment would be influenced thereby. See R.I. Gen. Laws § 36-14-5(g). Further, Commission Regulation 36-14-5009 provides that no person subject to the Code shall accept a gift from an “interested person.” The regulation defines “interested person” as an individual or business entity “that has a direct financial interest in a decision that the person subject to the Code of Ethics is authorized to make, or to participate in the making of, as part of his or her official duties.” Finally, Commission Regulation 5011 prohibits individuals subject to the Code from soliciting contributions, either directly or through a surrogate, from a subordinate over whom he or she exercises supervisory responsibilities in the course of his or her official duties. See Commission Regulation 36-14-5011. However, that prohibition does not apply where the subordinate initiates the solicitation for the contribution, is part of a regular commercial business or occupation, or is a charitable or fund raising event under the general sponsorship of a municipality or state.

Previously, the Commission has concluded that public agencies may engage in broad- based solicitation of private individuals and entities, including vendors, where the solicitations are intended for a public, rather than private, purpose. See A. O. 99-150 (concluding that the Code of Ethics does not prohibit the Family Court either from soliciting private entities for the donation of items to be distributed to its Juvenile Drug Court participants or from accepting food donations for use at the program’s graduation ceremonies where the intended solicitation is for the benefit of the program’s participants and constitutes a public purpose); A.O. 98-163 (opining that the Providence County High Sheriff may solicit public service groups, organizations and individuals on behalf of the Sheriff’s Office to obtain funding for a gun safety program for local school children given that the solicitations are for a public purpose and the petitioner will derive no personal financial benefit from them); A.O. 98-155 (finding that the Community Services Department of the Providence Housing Authority may solicit donations on behalf of the Providence Housing Community Corporation given that the solicitation is for the benefit of the agency and its third party recipients/clients and as such constitutes a public purpose rather than a personal interest).

The Commission similarly concludes that the Code of Ethics does not prohibit the Rhode Island Bridge and Turnpike Authority from soliciting private individuals and entities, including vendors, for donations to defray the costs of the IBTA’s post-conference historical and technical tour. Here, the intended solicitation is for the benefit of the Authority itself and, as such, constitutes a public purpose. Solicitations for such a public purpose would not constitute the use of official position to obtain improper financial gain or constitute an improper gift, given that any benefit would accrue directly to the Authority. See R.I. Gen. Laws § 36-14-5(d) and Commission Regulation 36-14-5009. Accordingly, the Authority may solicit vendors for donations to defray its costs, provided that there is broad-based solicitation of local individuals, organizations and businesses, and not just of persons or entities currently doing business with the Authority.

In its prior opinions, the Commission has opined that in the event that a public official or employee is in a position to exercise discretion over a matter involving an entity or individual that has been solicited, whether or not the individual or entity actually made a contribution, he or she should seek another advisory opinion before exercising his or her authority. Here, since the Authority represents that it would be soliciting its vendors, its members and/or employees clearly would be in a position to exercise discretion in matters involving said vendors. In addressing that very concern in Advisory Opinion 98-155, the Commission noted that because vendors go through public bidding/contracting requirements, they should not have any reason to believe that whether or not they choose to donate would impact the possibility of their receiving future contracts from the Providence Housing Authority. Therefore, the Authority’s solicitation of vendors under the circumstances set forth above is not prohibited by the Code of Ethics, provided that the Authority adheres to an open and public bidding process. In the event that the Authority is in a position to exercise discretion over a matter involving an individual/entity that is not subject to such requirements, it should seek further guidance from the Commission before exercising its authority.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-5(g)

36-14-5009

36-14-5011

Related Advisory Opinions:

99-150

99-44

98-163

98-155

95-42

Keywords:

Donations

Solicitations

Transactions with subordinates