Advisory Opinion No. 2002-74

Re: The Honorable Frank A. Ciccone

QUESTION PRESENTED

The petitioner, a State Senator, a state elected official, requests an advisory opinion as to whether he is prohibited from participating in particular matters before the Legislature given that he is employed by the Rhode Island Laborers’ District Council as a Field Representative and by the Rhode Island Judicial, Professional and Technical Employees’ Local Union 808 as a Business Manager and given that he receives a retirement pension from the Employees’ Retirement System of Rhode Island.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner is prohibited from participating or voting in matters before the Legislature that would directly affect his employers, the Rhode Island Laborers’ District Council and the Rhode Island Judicial, Professional and Technical Employees’ Local Union 808. The petitioner also seeks guidance as to whether he may participate in matters before the Legislature involving the Employers’ Retirement System of Rhode Island (ERSRI) given his status as a retirement benefit recipient. Whether the petitioner may participate in matters affecting ERSRI involves fact specific, matter by matter determinations. As such, the petitioner is advised that he should seek further guidance from the Ethics Commission, providing relevant details, before such matters come before the Legislature.

The Code of Ethics provides that the petitioner shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction that is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the petitioner has reason to believe or expect that he or any family member or business associate, or any business by which he is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. R.I. Gen. Laws § 36-14-7(a). Additionally, the Code provides that the petitioner shall not use in any way his public office or confidential information received through his holding any public office to obtain financial gain, other than that provided by law, for himself, a business associate or any business by which the petitioner is employed. R.I. Gen. Laws § 36-14-5(d). General Advisory No. 13 also provides general guidance to legislators who are otherwise employed or associated with outside business interests.

Based upon these provisions of the Code, the Commission has held that Legislators may not participate in matters that result in a financial gain to themselves or their business associates. A number of advisory opinions concern the private employment of legislators. In general, the Commission has concluded that a legislator cannot participate in matters directly affecting his/her employer. In A.O. 95-25, the Commission found that a State Legislator who was also an employee of a non-profit community based organization that receives funding from the legislature could not participate in matters specifically relating to her employer. See also A.O. 96-89 (State Senator could not sponsor, participate in the development of, or vote on legislation directly affecting his employer); A.O. 95-20 (Legislator could not participate or vote in matters specifically relating to private employment at a non-profit organization but could vote on budget generally).

After considering the Code of Ethics and previous advisory opinions, the Commission concludes that the petitioner is prohibited from participating in matters that would directly affect his employers, the Rhode Island Laborers’ District Council and the Rhode Island Judicial, Professional and Technical Employees’ Local Union 808. In the event that any matter directly affecting his employer should come before him in the Senate, the petitioner should utilize the notice and recusal sections provided in R.I. Gen. Laws § 36-14-6. Petitioner should seek further guidance from the Commission regarding his ability to participate in specific ERSRI matters before the Legislature.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-6
36-14-7(a)

Related Advisory Opinions:

98-59
97-51
96-89
GCA-13
95-25
95-20

Keywords:

private employment
recusal