Advisory Opinion No. 2008-61 Rhode Island Ethics Commission Advisory Opinion No. 2008-61 Re: Colonel Brendan P. Doherty QUESTION PRESENTED The Petitioner, Commissioner of Public Safety and Superintendent of State Police, a state appointed position, who also serves as a member of the Criminal Justice Policy Board, requests an advisory opinion as to whether he must recuse from voting as a member of the Criminal Justice Policy Board to approve spending allocations performed by the Public Safety Grant Administration Office, given that agency falls under the direction of the Commissioner of Public Safety. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, Commissioner of Public Safety and Superintendent of State Police, a state appointed position, who also serves as a member of the Criminal Justice Policy Board, need not recuse from voting as a member of the Criminal Justice Policy Board to approve spending allocations performed by the Public Safety Grant Administration Office, notwithstanding the fact that that agency falls under the direction of the Commissioner of Public Safety. The Petitioner is the Superintendent of State Police. He states that the General Assembly recently enacted R.I. Gen. Laws § 42-7.3, which establishes the Department of Public Safety (“DPS”), that is “responsible to consolidate the law enforcement services presently provided by six divisions and agencies within the executive branch of state government.” Id. at § 42-7.3-1. Under this law, the Petitioner, as the Superintendent of State Police, became the Commissioner of Public Safety. Additionally, the General Assembly adopted R.I. Gen. Laws § 42-26-3, which creates a Public Safety Grant Administration Office (“PSGAO”) within the DPS to replace the former Rhode Island Justice Commission (“RIJC”). He states that all spending allocations performed by the PSGAO are reviewed and approved by the Criminal Justice Policy Board (“CJPB”) and that, pursuant to R.I. Gen. Laws § 42-26-6, the Superintendent of State Police is a statutorily mandated member of the CJPB. He represents that the PSGAO receives a portion of the federal grant funds for administrative costs and fees for each grant that is administered by its office. This percentage is generally set by the grant administrator at approximately 10% of the total funds of any given grant allocation; although the CJPB has the discretion to reduce that amount by vote, as a matter of policy and practice, it does not increase that amount. The petitioner states that prior to the creation of the PSGAO, when the CJPB voted to approve grant funding allocated to the State Police, he would recuse from voting due to his position as Superintendent of State Police. Now, however, given the departmental reorganization brought about by the enactment of R.I. Gen. Laws § 42-7.3, the PSGAO falls within the DPS’s Central Management Office, which the petitioner, as Commissioner of Public Safety, oversees. Thus, based on all of the above, the petitioner requests an advisory opinion as to whether he is now prohibited from voting as a member of the CJPB to approve any grant funding allocation, given that some percentage of each grant allocation will go to the PSGAO for administrative fees and costs, and that in his position as Commissioner of Public Safety, he oversees the PSGAO. 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 and employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). The petitioner 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 his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(a). The Code further provides that the petitioner shall not engage in any employment that would impair his independence of judgment as to his public duties. See R.I. Gen. Laws § 36-14-5(b). He also is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d). A business is defined as “a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, trust or any other entity recognized in law through which business for profit or not for profit is conducted.” R.I. Gen. Laws § 36-14-2(2). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3). A person is defined as “an individual or a business entity.” R.I. Gen. Laws § 36-14-2(7). The central question in this petitioner’s inquiry is whether the Code of Ethics prohibits him from taking action as a member of one public entity that will result in a financial impact to another public entity, which he oversees. While the petitioner is the Commissioner of Public Safety and a member of the CJPB, and the Code of Ethics would prohibit him from making decisions in either capacity that would financially impact any business associate or any business by which he is employed or represents, neither the DPS, nor any subdivision therein, nor the CJPB are considered to be "businesses" or "business associates" under the Code of Ethics. See A.O. 2008-50 (opining that the Rhode Island State Veterinarian, an employee of the Division of Agriculture, is not inherently prohibited by the Code from serving as an adjunct professor at URI, notwithstanding the fact that the two roles may intersect, as neither the Division of Agriculture or URI are “businesses” as defined by the Code and thus the petitioner’s relationships with those entities are not “business associations”); A.O. 2002-63 (opining that an Exeter Town Councilor was not prohibited from participating in Town Council matters regarding property owned by the State of Rhode Island, notwithstanding the fact that he was in negotiations with DEM for the sale of land owned by petitioner to the State of Rhode Island, given that the State of Rhode Island is not a business as defined under Rhode Island law, and cannot therefore be considered a “business associate” under the Code of Ethics); A.O. 2002-55 (term "business" as used in the Code of Ethics does not include public entities such as the Town of Richmond). Thus the petitioner’s relationship with DPS, and each of the individual agencies that fall under its umbrella, as well as his relationship with the CJPB, do not constitute “business associations” under the Code. Accordingly, absent any other relevant fact that would implicate provisions of the Code of Ethics, the petitioner is not prohibited from voting as a member of the CJPB to approve grant funding allocations, notwithstanding the fact that the PSGAO, an entity the petitioner oversees in his capacity as Commissioner of Public Safety, will be the recipient of some percentage of each grant allocation approved, given that his actions will not be financially impacting himself, any person within his family or any business associate. See A.O. 2003-31 (opining that the Executive Director of the Rhode Island Governor's Commission on the Deaf and Hard of Hearing was not prohibited from serving on the Board of Trustees of the Rhode Island School for the Deaf since, even if his official action at one of these public bodies did financially impact the other, such action is not prohibited under the Code of Ethics because the Code of Ethics does not consider any relationship between a public official and a public body to be that of "business associates"). The petitioner is cautioned, however, that if any matters should come before him as he is carrying out his duties in either of his public roles that may present any other potential conflict of interest that is not otherwise contemplated in this advisory opinion, or circumstances in which it is reasonably foreseeable that there will be a financial impact upon the petitioner personally, he should either request further advice from this Commission or exercise the recusal provision found at R.I. Gen. Laws § 36-14-6. Code Citations : § 36-14-2(2) § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-5(f) § 36-14-6 § 36-14-7(a) Related Advisory Opinions : A.O. 2008-50 A.O. 2003-31 A.O. 2002-63 A.O. 2002-55 Keywords : Business Associate Dual Public Roles