Advisory Opinion No. 2009-15 Rhode Island Ethics Commission Advisory Opinion No. 2009-15 Re: Michael D. Cassidy QUESTION PRESENTED The Petitioner, Director of the City of Pawtucket Department of Planning and Redevelopment, a municipal appointed position, requests an advisory opinion regarding whether the Department of Planning and Redevelopment is prohibited by the Code of Ethics from soliciting donations for the Pawtucket City Arts Festival from vendors who do business with the City of Pawtucket. RESPONSE It is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the City of Pawtucket Department of Planning and Redevelopment from soliciting donations for the Pawtucket City Arts Festival from vendors who do business with the City of Pawtucket. The Petitioner is the Director of the Department of Planning and Redevelopment (“DPR”) for the City of Pawtucket (“City”). He represents that for over ten years the City has organized and staffed the Pawtucket Arts Festival (“Arts Festival”). He states that the Arts Festival is a three-week long event that is supported by budgeted City funds, donations from local businesses, state and federal grants, sale of merchandise (such as hats, t-shirts and posters) and raffles. He represents that the event involves the dedication of considerable municipal employee support hours involving many departments including, among others, the Departments of Planning and Redevelopment, Legal Counsel, Public Works, Police and Fire. He further states that in 2008, over 200 businesses provided either cash or in-kind donations to financially support this event. He represents that companies that make donations to the Arts Festival are subsequently recognized in myriad marketing materials distributed regarding the event. The Petitioner represents that this year DPR has compiled a mailing list of approximately 1,000 businesses and will be sending each business a form letter seeking fundraising donations for the Arts Festival. Additionally, the Petitioner represents that this year DPR would like to send the same fundraising request form to vendors with whom the City does business. He further represents that the Purchasing Department states that the City does business with approximately 12,600 vendors and businesses which could be solicited. Additionally, he estimates that DPR does business with approximately 200 of the total number of vendors and businesses which might be solicited. Thus, given this set of facts, the Petitioner requests an advisory opinion as to whether DPR is prohibited by the Code of Ethics from soliciting donations for fundraising for the Pawtucket Arts Festival from vendors with whom the City currently does business. 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). He may not solicit or accept a gift or certain contributions with the understanding that the official’s vote, official action, or judgment would be influenced thereby. See R.I. Gen. Laws § 36-14-5(g). Additionally, Commission Regulation 36-14-5011, entitled "Transactions with Subordinates," generally prohibits persons subject to the Code of Ethics from engaging in financial transactions with subordinates. It reads, in pertinent part: No person subject to the Code of Ethics shall engage in a financial transaction . . . with a subordinate or person or business for which, in the official's or employee's official duties and responsibilities, he or she exercises supervisory responsibilities, unless (1) the financial transaction is in the normal course of a regular commercial business or occupation, (2) the subordinate or person or business described above offers or initiates the financial transaction, or (3) the financial transaction involves a charitable event or fundraising activity which is the subject of general sponsorship by a state or municipal agency through official action by a governing body or the highest official of state or municipal government. Regulation 36-14-5011(a). The regulation also expressly states that the term "subordinate" includes contractors and consultants. Regulation 36-14-5011(c). To the extent that the Petitioner exercises supervisory responsibilities over a vendor as part of his official duties as Director of DPR, then that vendor will be considered to be a "subordinate" pursuant to Regulation 5011. However, that prohibition does not apply where the subordinate initiates the solicitation for the contribution, is part of a regular commercial business or occupation, or involves a charitable or fundraising event under the general sponsorship of a municipality or state. In prior advisory opinions, the Commission has opined that public agencies may engage in broad-based solicitation of private individuals and entities, including vendors, where the solicitations are intended for a public, rather than private, purpose. See A.O. 2001-59 (concluding that the Code of Ethics does not prohibit the Rhode Island Bridge and Turnpike Authority from soliciting donations from its vendors and others in the community to help defray the costs of a post-conference historical and technical tour of Rhode Island, provided that there is broad-based solicitation of local individuals, organizations and businesses, and not just of persons or entities currently doing business with the Authority, since the intended solicitation is for the benefit of the Authority itself, and as such, constitutes a public purpose); A. O. 99-150 (concluding that the Code of Ethics does not prohibit the Family Court either from soliciting private entities for the donation of items to be distributed to its Juvenile Drug Court participants or from accepting food donations for use at the program’s graduation ceremonies, provided that there is broad based solicitation of local individuals, organizations and businesses, and not just of persons or entities currently doing business with the Family Court, where the intended solicitation is for the benefit of the program’s participants and constitutes a public purpose); A.O. 98-163 (opining that the Providence County High Sheriff may solicit public service groups, organizations and individuals on behalf of the Sheriff’s Office to obtain funding for a gun safety program for local school children, provided that there is broad based solicitation of local individuals, organizations and businesses, and not just of persons or entities currently doing business with the Providence County Sheriff’s Office, given that the solicitations are for a public purpose and the Petitioner will derive no personal financial benefit from them); A.O. 98-155 (finding that the Community Services Department of the Providence Housing Authority may solicit donations on behalf of the Providence Housing Community Corporation given that the solicitation is for the benefit of the agency and its third party recipients/clients and as such constitutes a public purpose rather than a personal interest). As an initial matter, the Petitioner represents that he is in a position to exercise discretion over matters involving some of those vendors who will be solicited. The Commission addressed this issue in Advisory Opinion 98-155 where it noted that because vendors go through public bidding/contracting requirements, they should not have any reason to believe that the question of whether or not they choose to donate would impact the possibility of their receiving future contracts from the agency. Similarly, in the instant matter, the DPR’s solicitation of vendors under the circumstances set forth above is not prohibited by the Code of Ethics, given that vendors contracting with the DPR go through a public bid process and given that the solicitation in this instance is for donations to support the Pawtucket Arts Festival, and thus, is solicitation of a public nature that will not benefit the Petitioner or requestor personally, but rather, will benefit the City and the public generally. Accordingly, the Commission opines that the Code of Ethics does not prohibit DPR from soliciting vendors whom the City currently does business with for fundraising donations to assist in sponsoring the Pawtucket Arts Festival. The intended solicitation is for the benefit of the Arts Festival, a public event to which the City itself provides considerable funding and support personnel, and constitutes a public purpose. Solicitations for such a public purpose would not constitute the use of official position to obtain improper financial gain or constitute an improper gift, given that the event for which sponsorships are sought is intended to benefit the public generally. See R.I. Gen. Laws § 36-14-5(d) and Commission Regulations 36-14-5009 and 5011. Code Citations: 36-14-5(d) 36-14-5(g) 36-14-5009 36-14-5011 Related Advisory Opinions: 2001-59 99-150 98-163 98-155 Keywords: Donations Solicitation