Advisory Opinion No. 2002-35

Re: Mark P. Welch, Esq.

QUESTION PRESENTED

The petitioner, the North Providence Town Solicitor, a municipal appointed position, requests an advisory opinion as to whether he may serve as Treasurer of the Mayor A. Ralph Mollis Campaign Committee, given that he is appointed to his position by the mayor.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the North Providence Town Solicitor, a municipal appointed position, may serve as the Treasurer of the Mayor A. Ralph Mollis Campaign Committee. This private political activity does not fall within the purview of the Code of Ethics because 1) the Committee is not a governmental agency; 2) the petitioner does not hold a public position concerning elections; and 3) public resources and time will not be used in the pursuit of political activity. His appointment to his position by the mayor is not relevant.

The petitioner represents that in January 1997 the Mayor of North Providence appointed him to his position as Town Solicitor. The position of Solicitor is a part-time position and the Town Council establishes its compensation. The petitioner advises that he has been asked to fill the position of Treasurer of the Mayor A. Ralph Mollis Campaign (or Friends of A. Ralph Mollis/A. Ralph Mollis Committee). He indicates that he would conduct the duties of Treasurer during his own time and without the use of public resources. He represents that he would receive a $1,000 per year stipend for his service as Treasurer.

Under the Code of Ethics, a public official 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. An official will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, 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) and 7(a). He also may not accept other employment which will impair his independence of judgment as to his official duties. See R.I. Gen. Laws § 36-14-5(b). Further, the Code provides that he shall not solicit or accept gifts, loans, campaign contributions, or a promise of future employment based on any understanding that his vote, official action, or judgment would thereby be influenced. See R.I. Gen. Laws § 36-14-5(g).

The Code of Ethics does not bar the petitioner from belonging to political committees, or any other organization. The Code does impose restrictions on public officials, however, depending on the nature of their involvement in activities and organizations beyond their public duties. The Mayor A. Ralph Mollis Campaign Committee is not a governmental agency. As a result, any action taken by the petitioner as Treasurer of the Campaign Committee is private, not public, conduct. Additionally, the prohibitions of Section 5(a) and 5(b) of the Code do not apply to his activity as Treasurer of the Campaign Committee since it does not constitute “employment" that will impair his independence of judgment as his public position does not concern elections. See A.O. 96-78, A.O. 95-51.

The Commission consistently has found that, while mere membership in an organization does not create a "business associate" relationship as defined in the Code of Ethics, such a relationship does exist for those in leadership positions since they direct the financial objectives of the organization. See R.I. Gen. Laws §§ 36-14-5(a), (d), (f). As a political entity, the Campaign Committee is an association that has a financial component. The Code of Ethics defines “business associate” as a person joined together with another person to achieve a common financial objective. R.I. Gen. Laws § 36-14-2(3). The purpose of the Campaign Committee is to generate monies needed to fund the campaign of A. Ralph Mollis in his campaign for Mayor of North Providence. This existence of a financial component is sufficient to qualify the petitioner and his fellow Campaign Committee members as business associates. See A.O. 98-42. (concluding the Alternate Woonsocket Municipal Court Judge may remain a member of various political committees during his tenure but is prohibited from taking any action as an Alternate Judge which he has reason to believe or expect would result in financial benefit to one of the committees or its members); A.O. 99-33 (finding that a Town Councilor may not participate on a matter affecting his fellow committee members since they are considered business associates under the Code of Ethics).

Previously, the Commission opined that the Johnston Environmental Coordinator could participate in endorsing a mayoral candidate as a member of the Johnston Democratic Town Committee member, despite the fact that she was appointed by the mayor. E.g. A.O. 98-107. Similarly, the Commission concludes that the petitioner may serve as the Treasurer of the Mayor A. Ralph Mollis Campaign Committee. However, he may not take any action as Town Solicitor which he has reason to believe or expect would result in financial benefit to the Campaign Committee or a member of the Campaign Committee. If and when a matter involving the Campaign Committee or one of its members appears before him in his capacity as Town Solicitor he must recuse from participation. Notice of recusal should be filed with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

Further, the petitioner is cautioned and advised that, pursuant to Commission Regulation 5011, he may not solicit his subordinates for the purchase of fundraising tickets and/or other political contributions on behalf of the Campaign Committee. Additionally, R.I. Gen. Laws § 36-14-5(i) prohibits any person from giving or offering "any gift, loan, political contribution, reward or promise of future employment based on any understanding or expectation that the vote, official action or judgment of said person would be influenced thereby." Finally, the petitioner is advised that this opinion only addresses whether the Code of Ethics prohibits him from serving on a mayoral candidate’s campaign while simultaneously serving as the Town Solicitor in that municipality. It does not address whether any other statutes, rulings or policies, specifically from the State Board of Elections, prohibit such simultaneous activity.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(f)

36-14-5(i)

36-14-6

36-14-7(a)

36-14-5001

Related Advisory Opinions:

2001-72

2001-64

2000-10

99-38

99-33

98-146

98-107

98-109

98-42

96-78

95-51

92-46

Keywords:

Political activity