Advisory Opinion No. 2009-21 Rhode Island Ethics Commission Advisory Opinion No. 2009-21 Re: Michael D. Evora, Esq. QUESTION PRESENTED The Petitioner, the Executive Director of the Rhode Island Commission for Human Rights, a state employee position, requests an advisory opinion regarding whether the Commission for Human Rights is prohibited by the Code of Ethics from accepting a contribution from Rhode Island for Community and Justice, a private non-profit organization. RESPONSE It is the opinion of the Ethics Commission that Rhode Island Commission for Human Rights is not prohibited by the Code of Ethics from accepting a contribution from Rhode Island for Community and Justice, a private non-profit organization, given that the contribution will not go to any individual person subject to the Code of Ethics, but rather, will be deposited into the Commission for Human Rights’ state account, which is subject to oversight by the state controller’s office. The Petitioner is the Executive Director of the Rhode Island Commission for Human Rights (“RICHR”). He represents that for many months he has been involved in a project, during his regular working hours, in collaboration with Rhode Island for Community and Justice (“RICJ”), and involving various other public and private entities, called the “Collaboration to Address Disproportionate Minority Contact (DMC) of Juveniles with the Rhode Island Justice System” (“the DMC Collaboration” ). He further states that on April 2, 2009, he received a check for $1,500.00 from RICJ made out to the RICHR, along with a letter from RICJ indicating that the money was intended to serve as an honorarium in acknowledgement of the Petitioner’s active participation and role in the DMC Collaboration and the DMC Advisory Group charged with guiding that project. The Petitioner states that if the RICHR were to accept the check, it would be deposited into the RICHR general state account, which the Petitioner represents is used to pay for rent, office supplies, salaries, and other budgeted items; he further states that access by the RIHRC to funds in the RICHR account is restricted to purchase orders, subject to approval by the state controller’s office. Additionally, the Petitioner states that the RICHR has no check-writing capability or other mechanism for accessing budgetary funding, other than by pre-approved purchase order. The Petitioner affirmatively states that if the RICHR is permitted to accept and deposit the check, that there will be no personal financial gain for him, but rather, that the funds will be absorbed into the RICHR budget to the benefit of the State of Rhode Island. Under the Code of Ethics, a public official may not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction which is in substantial conflict with the proper discharge of his or her duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the official has reason to believe or expect that he or she or any family member, business associate, or any business by which he or she is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. See R.I. Gen. Laws § 36-14-7(a). Further, the official may not use his or her position or confidential information received through said position to obtain financial gain, other than that provided by law, for him or herself, a business associate, or any business which the official represents or by which he or she is employed. See R.I. Gen. Laws § 36-14-5(d). Additionally, Commission Regulation 36-14-5009, entitled “Prohibited Activities – Gifts,” prohibits public officials and employees from accepting or receiving any gifts of cash, or any goods or services valued at more than twenty-five dollars ($25), from an “interested person.” Finally, pursuant to Commission Regulation 36-14-5010, a public official or employee shall not accept an honorarium, fee or reward or other compensation for any activity which directly relates to his official duties unless: 1) he does not exercise decision making authority over the source; and 2) he uses his own time and does not make improper use of public resources when engaging in or preparing for the activity. It is the opinion of this Commission that neither Commission Regulation 5009, nor Commission Regulation 5010 are applicable to this Petitioner’s set of factual circumstances, as both of those regulations contemplate acceptance of a gift or honoraria by an individual person subject to the Code, whereas, in this instance, if the RICJ check is accepted and deposited by the RICHR, it will go into that entity’s general state account, access to which is subject to oversight by the state controller’s office, and not to the benefit of any individual official or employee. Additionally, RICJ is not an “interested person” as to the RICHR as that term is defined in Commission Regulation 36-14-5009(c), as RICJ does not have “a direct financial interest in a decision that the [RICHR] is authorized to make.” Furthermore, notwithstanding the fact that the RICJ in its letter to the Petitioner describes the $1500.00 check as an “honoraria” to acknowledge his work with the RICJ on the DMC collaboration, it is the opinion of this Commission that the check is in fact merely a contribution to the RICHR, like any other contribution, made by the RICJ in honor of the Petitioner. Moreover, as the Petitioner affirmatively states that he will receive no personal financial benefit whatsoever from the RICHR’s acceptance of the funds, there is nothing to implicate the prohibitions found at R.I. Gen. Laws § 36-14-5(a) or (d). Even assuming, arguendo, that the $1500.00 contribution could be construed as a gift to a person subject to the Code such that the prohibitions of Regulation 5009 would be implicated, a conclusion that this Commission is not making for purposes of this advisory opinion, this Commission has previously allowed such gifts when no individual person stands to financially benefit, but rather, the gift is intended for the benefit of the public agency or entity. For example, in Advisory Opinion 2001-12, the Commission concluded that the Code of Ethics would not prohibit the Town of Johnston and/or its elected officials acting on behalf of the Town from accepting the donation of a dais from the Rhode Island Resource Recovery agency, or from accepting the donation of two boats for use by the Town's Fire Department from a business located within the Town and, therefore, subject to the Town's rules, regulations and ordinances. Although both prospective donors were “interested persons,” both donations were earmarked for use by the Town of Johnston, rather than resulting in any personal benefit to any particular official. The Commission also noted that there was no evidence to suggest that the donations were intended to impermissibly influence any decisions by the Town. See also A.O. 99-17 (finding that the Code of Ethics did not prohibit the Rhode Island Building Officials Association from accepting the donation of space at a home show from the Rhode Island Builders Association, and stating that, although the members of the Building Officials Association were municipal employees who had decision-making authority with regard to members of the Builders Association, the donation of space was provided to the Building Officials Association, rather than to individual officials.) Accordingly, it is the opinion of the Ethics Commission that, barring any other set of facts that would implicate prohibitions found in the Code of Ethics, the RICHR is not prohibited by the Code from accepting a contribution from the RICJ in the amount of $1,500 made in the Petitioner’s honor, given that the contribution is neither a gift nor an honorarium as those terms are defined in the Code, nor will the Petitioner receive any personal financial benefit from the contribution. Code Citations : § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) Commission Regulation 5009 Commission Regulation 5010 Related Advisory Opinions : A.O. 2001-12 A.O. 99-17 Keywords : Financial Interest Gift Honorarium