Advisory Opinion No. 2001-76

Re: Sandra Murphy Crowe, Esq.


The petitioner, an administrative hearing officer for the Rhode Island Department of Administration, a state employee position, requests an advisory opinion as to whether the Code of Ethics would be implicated if her spouse were to solicit contributions on behalf of his private employer from persons who, unbeknownst to him, have appeared or may appear before the petitioner in her capacity as a hearing officer.


It is the opinion of the Rhode Island Ethics Commission that the petitioner would not run afoul of the Code of Ethics in the event that her spouse were to solicit contributions on behalf of his private employer from persons who, unbeknownst to him, have appeared or may appear before the petitioner in her capacity as a hearing officer.

In her capacity as a hearing officer for the Department of Administration, the petitioner’s duties primarily concern holding administrative hearings and writing decisions or recommendations. The petitioner is the sole hearing officer for Division of Taxation appeals, which are available to any individual, business or other taxable entity that disagrees with a determination of the Tax Administrator. Such appeals are confidential and do not become public unless and until the taxpayer further appeals the hearing officer’s decision to the courts. She advises that she is required by law to keep all Division of Taxation matters confidential and asserts that she does not share the identities of any aggrieved taxpayers with her spouse. The petitioner’s spouse is an employee of Trinity Repertory Company and sits as an actor representative on its board of directors. She indicates that Trinity has asked him to make face-to-face solicitations for contributions pursuant to its new fundraising campaign. She represents that there is a remote possibility that her spouse may unknowingly solicit contributions from a person who has a pending or future tax appeal at the Division of Taxation for which the petitioner is the hearing officer.

Under the Code of Ethics, a public official or employee may not participate in any matter in which he or she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his or her duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). A public official or employee will have an interest in substantial conflict with his or her official duties if he or she has a reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his or her official activity, to himself/herself, a family member, a business associate, an employer, or any business which he or she represents. R.I. Gen. Laws § 36-14-7(a). The probability of the aforedescribed conflict of interest must be greater than “conceivably,” although it need not be certain to occur. See Commission Regulation 36-14-7001. Similarly, § 36-14-5(d) prohibits persons subject to the Code from using his or her public office or confidential information to obtain financial gain for him or herself or a family member. Finally, he or she 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).

Based upon the facts presented by the petitioner, any relationship between the petitioner’s official duties as a hearing officer and her spouse’s solicitations on behalf of his private employer is too remote to trigger the prohibitions contained in Sections 5(a) and 5(d) of the Code of Ethics. Neither she nor her spouse stands to receive any “direct monetary gain” through contributions made to Trinity. Given the confidentiality surrounding Division of Taxation appeals, the Commission finds that, while it is conceivable that her spouse may unknowingly solicit donations from pending or future tax appellants, such solicitations are by no means reasonably foreseeable.

Other provisions of the Code of Ethics relating to gifts are similarly inapplicable. Commission Regulation 5009(a) prohibits a person subject to the Code from accepting or receiving a gift, either directly or as the beneficiary of a gift given to a spouse, unless lawful consideration of equal or greater value is given in return for the gift. Here, donations solicited by the petitioner’s spouse would benefit his private employer. Again, any indirect financial benefit that could trickle down to her spouse as a Trinity employee is simply too attenuated to constitute a violation of the Code. Further, the confidentiality of appellate proceedings before the Division of Taxation effectively insulates the petitioner’s spouse from knowingly soliciting individuals who may appear before her in her capacity as a hearing officer.

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