Advisory Opinion No. 2002-5

Re: Senator Joseph M. Polisena

QUESTION PRESENTED

The petitioner, a legislator serving as a State Senator, a state elected position, who is employed part-time as a nurse at the Cranston Senior Center, requests an advisory opinion as to whether he may participate in the Senate’s consideration of the bill 2002-H6659, “An Act Authorizing the City of Cranston to Finance the Unfunded Pension Liability of the City of Cranston, by the Issuance of Not More than $235,000,000 Bonds Therefor”.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a State Senator, a state elected position, who is employed part-time as a nurse at the Cranston Senior Center, from participating in the Senate’s consideration of bill 2002-H6659, “An Act Authorizing the City of Cranston to Finance the Unfunded Pension Liability of the City of Cranston, by the Issuance of Not More than $235,000,000 Bonds Therefor”, given that he does not participate in the City of Cranston’s pension system and,therefore, will not accrue any benefit as a result of the proposed legislation.

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. Substantial conflict is defined as a “direct monetary gain or a direct monetary loss” that accrues, by virtue of the public official’s activity, to that individual, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, the Code provides that a public official or employee may not use his office to obtain financial gain for himself, his family, business associates, employer, or business that he represents other than as provided by law. See R.I. Gen. Laws § 36-14-5(d). Finally, pursuant to R.I. Gen. Laws § 36-14-5(b), a public official may not accept other employment which will either impair his independence of judgment as to his official duties or require him, or induce him, to disclose confidential information acquired by him in the course of his official duties.

The petitioner advises that he is employed part-time as a nurse at the Cranston Senior Center. He represents that he does not participate in the City of Cranston’s pension system, does not receive vacation or sick-time benefits, and has no responsibility for or authority over the governance of the City or its pension fund in his capacity as a State Senator. Finally, he indicates that the General Assembly’s passage or rejection of 2002-H6659 will have no affect upon him or any member of his family.

In Advisory Opinion 96-15, the Commission previously opined that a legislator serving as a State Representative, who also is a member of the City of Cranston Police Department, may vote on legislation concerning the City of Cranston’s police and fire employee pension systems. The legislator had served as a Cranston police officer for sixteen years and the legislation at issue related to those police and fire personnel who had been employed with the City of Cranston five years or less. There, the legislator’s participation did not present a conflict of interest due to the fact that he would not derive a financial benefit from the legislation. See also A.O. 95-75 (opining that a State Representative who is employed as a substitute teacher in the Cranston public school system may participate and vote on matters pertaining to state employees and teachers pension benefits given that he is not presently vested in the state retirement system and his status as a substitute teacher is not considered state service for the purposes of the state pension system).

The relevant provisions of the Code, namely sections 5(a) and 5(d), do not require recusal for such matters unless it is reasonably foreseeable that, in this instance, an elected official would be financially impacted by the proposed legislation. The Commission concludes that the petitioner may participate and/or vote in the General Assembly’s consideration of the proposed legislation at issue, 2002-H665 since he does not participate in City of Cranston’s pension system and would not derive a financial benefit from the passage or rejection of such legislation.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-7(a)

Related Advisory Opinions:

2001-20
99-30
97-44
96-15
95-75
95-70
95-65
95-64
95-63
95-56
95-55

Keywords:

Financial interest
Pension benefit