Advisory Opinion No. 2002-39

Re: Joseph Serdakowski

QUESTION PRESENTED

The petitioner, an East Greenwich Planning Board member, a municipal appointed position, requests an advisory opinion as to whether he may accept donations from private citizens to help defray legal expenses incurred in hearings before the Town Council.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, an East Greenwich Planning Board member, a municipal appointed position, from accepting donations from private citizens to help defray legal expenses incurred in hearings before the Town Council, provided that he does not accept from interested persons cash donations and/or donations in excess of $150. Further, he must comply with all statutory and regulatory reporting requirements relating to such gifts.

The petitioner is a member of the East Greenwich Planning Board and recently faced hearings before the East Greenwich Town Council regarding his possible suspension. The Council voted not to suspend him from his position. He advises that private citizens have approached him and inquired as to whether they could assist in defraying the legal expenses incurred in his defense before the Council. He seeks guidance as to how he may accept such donations consistent with the provisions of the Code of Ethics.

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). The official may not solicit or accept a gift or certain contributions with the understanding that his vote, official action, or judgment would be influenced thereby. See R.I. Gen. Laws § 36-14-5(g). Regulation 5009(a) provides that a person subject to the Code shall not accept or receive any gift of cash, forbearance or forgiveness of indebtedness from an “interested person.” Under Commission Regulation 5009(b), no such person shall accept or receive any gifts or other things having a value greater than $150, including but not limited to gifts, loans, rewards, promises of future employment, favors or services, gratuities or special discounts, from an “interested person.” An “interested person” is defined as any 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 participate in the making of, as part of his or her official duties.”

The Commission concludes that the petitioner may accept donations from private citizens to defray the cost of legal expenses incurred in his defense before the Town Council. Consistent with the proscription of Regulation 5009(b), he may not accept donations in excess of $150 from interested persons. Here, interested persons would include those persons over whom he has decision-making authority in his capacity as a member of the Planning Board. This would include those individuals who presently have matters pending before the Board and those for whom it is reasonably foreseeable that they will appear before the Board in the near future. Regulation 5009(a) strictly prohibits the petitioner’s acceptance of gifts of cash from interested persons. He personally may not receive donations of cash, including checks and money orders.

As a municipal appointed official, the petitioner is required to file an annual financial statement with the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-16. The statute requires that the financial statement must identify any person, business entity or other organization from whom he, his spouse or dependent child received a gift or contribution of money or property in excess of $100 in value, or a series of gifts or contributions of money or property totaling more than $100 in value received from the same source, and a description of each gift or contribution. See R.I. Gen. Laws § 36-14-17(b)(4). Any donations received by the petitioner to defray his legal expenses must be disclosed in accordance with the statute, whether or not the donor is an “interested person” under the Code.

Further, public officials and employees who accept gifts from interested persons are required to report gifts to the Ethics Commission by January 31, if the combined value of gifts from all interested persons reaches $100 or more in a calendar year. Once the cumulative threshold of $100 is reached, any and all gifts or other things of value received by a public official or employee from "interested persons" must be reported. The report must include as to all gifts received from interested persons during the calendar year: (1) the date the gift or other thing of value was received; (2) a description of the gift or other thing of value; (3) the fair market value of the gift or other thing of value; (4) the name, address and employer of the interested person who provided the gift or other thing of value; and, (5) the name of any organization represented by the interested person or on whose behalf the interested person was acting in providing the gift or other thing of value. See Regulation 5009(e). Accordingly, if the petitioner receives donations from "interested persons" that total more than $100 in value (or total more than $100 in value in combination with other gifts or things of value received from any interested persons in calendar year 2002), he must file a report with the Commission by January 31, 2003, listing those gifts with the foregoing information.

In the event that the petitioner is in a position to exercise discretion over a matter involving an entity or individual who has contributed to or been asked to contribute to his legal defense, whether or not the individual or entity actually made a contribution, he should seek another advisory opinion before exercising his authority. Finally, the petitioner is reminded that the donation/acceptance of funds to defray his legal costs would run afoul of the Code of Ethics if there is evidence to suggest that the gift/donation is intended to impermissibly influence any of his decisions as a member of the East Greenwich Planning Board. See R.I. Gen. Laws §§ 36-14-5(g) and 5(i).

Code Citations:

36-14-5(d)
36-14-5(g)
36-14-5(i)
36-14-5009
36-14-16
36-14-17(b)(4)

Related Advisory Opinions:

2001-76
2001-59
2000-68
99-150

Keywords:

Gifts
Donations
Solicitation