Advisory Opinion No. 2003-2

Re: Arthur Handy

QUESTION PRESENTED:

The petitioner, a legislator serving as a State Representative, a state elected position, requests an advisory opinion to determine what restrictions the Code of Ethics places on his ability to participate in matters involving his private employer, the American Lung Association and his spouse’s private employer, the Urban League of Rhode Island.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the petitioner from lobbying or representing the interests of the American Lung Association before the General Assembly. This would be representing another person before a state agency by which he is employed. Additionally, even if he is not representing the American Lung Association, he is prohibited from participating in the House’s consideration of any matter where it is reasonably foreseeable that the American Lung Association will receive a direct financial benefit or detriment by reason of his official action. Further, with regard to the private employer of his spouse, the Urban League of Rhode Island, the petitioner may participate in matters affecting his spouse’s employer provided his spouse does not receive a direct financial benefit. Finally, regardless of whether the Urban League stands to receive a financial benefit, if his spouse appears before any committee on which the petitioner serves or testifies before the General Assembly, the petitioner must recuse.

The petitioner was recently elected to the Rhode Island House of Representatives. The petitioner represents that he is currently employed by the American Lung Association of Rhode Island and as part of his position he lobbies on behalf of the Association. Additionally, the petitioner represents that his spouse is a lobbyist for the Urban League of Rhode Island in the Advocacy and Public Policy Department. He states that she is several levels below the Executive Director and that one of her responsibilities is testifying on bills before the General Assembly.

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. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if he 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. See R.I. Gen. Laws § 36-14-7(a). He may not accept other employment that will either impair his independence of judgment as to his official duties or employment or require him to disclose confidential information acquired by him in the course of his official duties. See R.I. Gen. Laws § 36-14-5(b). He is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents. See R.I. Gen. Laws § 36-14-5(d). Further, §36-14-5(e)(1) of the Code provides that “[n]o person subject to the Code of Ethics shall represent him or herself before any state or municipal agency of which he or she is a member or by which he or she is employed.” Finally, under Commission Regulation 5002, a public official must recuse if his spouse, dependent child, employer, or business associate appears before his board.

The petitioner seeks this advisory opinion to determine what limitations are placed on his ability to participate and/or vote on matters, as a newly elected State Representative, given his private employment with the American Lung Association of Rhode Island. First, the Code of Ethics provides that the petitioner shall not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. See R.I. Gen. Laws § 36-14-5(e)(1), (2). As such, the petitioner is prohibited from lobbying or representing the interests of his employer, the American Lung Association of Rhode Island, before the General Assembly.

Second, the petitioner seeks guidance as to whether he is prohibited from lobbying city/town councils or the United States Congress on behalf of the American Lung Association of Rhode Island. The Code of Ethics does not prohibit the petitioner from lobbying the United States Congress or Rhode Island cities and towns. However, the petitioner is advised to exercise caution when lobbying city and town councils that may have an interest in matters pending before the General Assembly. While the General Assembly included as one of its legislative purposes when enacting the Code of Ethics the elimination of appearances of impropriety, it did not make the appearance of impropriety a violation of the law. Nor has this Commission promulgated regulations to that effect. Therefore, if the petitioner believes that his participation in House matters might create an appearance of impropriety given his private lobbying of affected cities and towns, he may recuse, although he is not required to do so.

Third, the petitioner seeks guidance as to whether he is permitted to testify on bills that do not confer a financial benefit or detriment to his employer, the American Lung Association of Rhode Island. The Commission recognizes that legislators are drawn from various occupational backgrounds and professions and bring valuable expertise to the Legislature based on their occupations and professional affiliations. However, it is imperative that the public interest and not the interest of his employer guide a legislator’s decisions. In a past advisory opinion, the Commission held that a State Representative who was privately employed by AIDS Project Rhode Island was permitted to participate in legislation involving health care issues generally. However, he must recuse himself on any matters that would financially impact his employer. See A.O. 99-77. Here, the petitioner may participate on legislation that may be consistent with the mission of the American Lung Association. However, the petitioner is prohibited from participating in legislation if he has reason to believe or expect that he or his employer, the American Lung Association, will derive a direct monetary gain or suffer a direct monetary loss, by reason of his official conduct or participation.

Finally, the petitioner advises that his spouse is currently employed as a lobbyist for the Urban League of Rhode Island. As a lobbyist, it is likely that she will appear before the petitioner in his capacity as a committee member. The Commission has issued numerous advisory opinions advising public officials to recuse when their spouse appeared before their board since participation would be a substantial conflict of interest. See e.g., A.O. 99-142, A.O. 99-36, A.O. 98-172. Therefore, when the petitioner’s spouse appears before his committee, Regulation 5002 mandates that the petitioner recuse in accordance with §36-14-6 of the Code of Ethics by filing a recusal form with the committee and the Ethics Commission. However, the petitioner may participate and/or vote when the matter is out of committee and before the General Assembly, provided that the petitioner’s spouse is not testifying before the General Assembly.

Additionally, the Code does not generally preclude a public official from participating in matters affecting a spouse’s employer unless it is reasonably foreseeable that the matter under consideration would affect the family member. See R.I. Gen. Laws § 36-14-7(a). As such, the petitioner is not prohibited from participating in matters that involve the Urban League of Rhode Island generally, provided that it is not reasonably foreseeable that the matter will financially affect the spouse. See A.O. 99-28

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(e)

36-14-6

36-14-7(a)

36-14-5002

Related Advisory Opinions:

2002-26

2000-23

99-142

99-77

99-36

99-28

98-172

Keywords:

Lobbying

Nepotism

Private employment

Recusal