Advisory Opinion No. 2010-27

Rhode Island Ethics Commission

Advisory Opinion No. 2010-27

Re: Michael St. Jean

QUESTION PRESENTED 

The Petitioner, the Director of Technology for the Pawtucket School Department, a municipal employee position, requests an advisory opinion as to whether he is prohibited by the Code of Ethics from accepting a position on Hewlett-Packard’s Services Client Advisory Council.

RESPONSE

It is the opinion of the Ethics Commission that the Petitioner, the Director of Technology for the Pawtucket School Department, a municipal employee position, is prohibited by the Code of Ethics from accepting a position on Hewlett-Packard’s Advisory Council, pursuant to R.I. Gen. Laws § 36-14-5(a), (b), (d), (f) and 7(a).

The Petitioner has been the Director of Technology for the Pawtucket School Department (“School Department”) for approximately sixteen years.  He states that in this role he is responsible for, among other things, the planning, budgeting, purchasing and implementing of school and district-wide academic and administrative technology initiatives.  He further states that while information technology purchasing decisions often involve the participation of multiple staff persons, and are, in this sense “departmental” purchases, the Petitioner does exercise decision-making authority as to what information technology products and services the School Department purchases;  he further states that if another entity or individual has final budgetary approval power over such purchases, such as the Superintendant or School Committee, they generally defer to his recommendation, given his position as Director of Technology.  In this regard, he states that the Pawtucket School District has steadily purchased from Hewlett Packard (“HP”) in the past and that HP is currently a Tier One vendor and is on the State Master Price Agreement.  He also states that while the amount of money spent in any given fiscal year on HP products fluctuates, the School Department has consistently purchased HP products over the years, and, in many of those years, expended substantial funds on HP products.  Additionally, the Petitioner states that it would not be practicable or possible for him to remove himself from participation in the decision-making in regard to such purchases, given his position as Director.

He states that recently he was nominated to sit on the HP Services Client Advisory Council.  He represents that as a member of the Advisory Council, he would review HP engineering initiatives and provide advice as to potential problems, acceptance, or usage in the marketplace, specifically in the K-12 educational environment.  He states that he is interested in serving on the Council as “participation offers a unique opportunity to assist a major technology manufacturer in developing products that better meet the needs of the K-12 market.” 

The Petitioner attached a copy of the invitation letter that he received from HP, as well as the HP “Advisory Council Membership Agreement,” to his request for an advisory opinion.  The invitation letter forwarded to the Petitioner from HP states that the

Advisory Council is a key group of individuals whose feedback helps shape HP’s efforts in K-12 education.  Participation on the council is an opportunity to discuss key issues in education and drive efforts towards shaping products and solutions that meet or exceed the educational technology needs of your colleagues across the country.

The letter also states that the council is composed of 20 national education and technology leaders and, further, asks for a commitment to attending two annual meetings, periodic 60 minute conference calls, and email exchanges via the “HP Computing Schools” network. 

Additionally, the “Advisory Council Membership Agreement” outlines the terms the Petitioner would agree to with HP, which include, among other things, the following: 1) “compensation” to include reimbursement for travel, airfare, lodging, meals and gifts, valued at $1,200.00; 2) a commitment to serve on the HP Services Client Advisory Board for two years and attend at least one in-person meeting per year; 3) that the member warrants that “no applicable law, regulation, code of ethics or conduct, or conflict of interest or gift policy prohibits participation and/or receipt of the compensation or reimbursement of the expenses described” in the agreement, or that the member received a waiver or advisory opinion allowing him to participate; 4) 30 day written notice by either party prior to terminating the agreement; 5) a confidentiality agreement that states that for five years the “member will use the confidential information only for purposes of this agreement, and will not disclose such confidential information to any third party except as authorized in writing by HP”; and, 6) agreement by the member that “this agreement will not be deemed to create a partnership, joint enterprise, agency or employment relationship between the parties.”

Given this set of facts, the Petitioner requests an advisory opinion regarding whether the Code of Ethics prohibits him from serving on the HP Services Client Advisory Board.

Under the Code of Ethics, a public official or employee 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).  The Petitioner will have an interest in substantial conflict with his official duties if he has 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).  Commission Regulation 36-14-7001 provides that a public official has reason to believe or expect that a conflict of interest exists when it is “reasonably foreseeable.”

Section 5(b) of the Code of Ethics prohibits a person subject to the Code from accepting other employment that will impair his independence of judgment as to his official duties or require or induce him to disclose confidential information acquired in the course of his official duties.  See R.I. Gen. Laws § 36-14-5(b).  Additionally, the Code provides that the Petitioner shall not in any way use 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.  See R.I. Gen. Laws § 36-14-5(d). 

Finally, an official may not participate in a matter concerning or presented by a business associate, and must recuse from voting or otherwise participating in his agency's consideration of the matter at issue.  See R.I. Gen. Laws § 36-14-5(f).  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).

In determining whether a relationship between two parties constitutes an ongoing business association as defined in the Code of Ethics, the Ethics Commission examines the nature of the association and the scope of the business dealings between the parties and looks to, among other things, whether the parties are conducting ongoing business transactions, have outstanding accounts, or there exists an anticipated future relationship. See A.O. 2010-16 (opining that member of the East Greenwich Planning Board, who in his private capacity is the publisher of a local news and information web site, must recuse pursuant to R.I. Gen. Laws § 36-14-5(f) when an entity that he is in a current business association with appears before the Planning Board, specifically, if the entity currently advertises on the Petitioner’s web site, or has outstanding accounts with the Petitioner, or when there is an anticipated future relationship between the parties). 

Additionally, the Commission has concluded that persons are "business associates" of entities for which they serve either as officers, or members of the Board of Directors, or in some other leadership position that permits them to affect the financial objectives of the organization.  See A.O. 2010-15 (opining that a Supervising Environmental Scientist for CRMC, who was also a general member of the Westerly Land Trust and additionally, served on its Site Advisory Committee and would be providing the Land Trust with professional services, albeit unpaid, in the form of professional and technical advice regarding compliance with regulatory requirements, wetlands identification, and other matters, was in a business association with the Land Trust); A.O. 2007-58 (opining that a member of the Tiverton Planning Board is prohibited from participating in the Planning Board’s review of a proposed amendment to the Tiverton Zoning Ordinance as requested by the Tiverton Yacht Club, given that he is a member of the Board of Directors of the Yacht Club). 

It is the opinion of the Ethics Commission that if the Petitioner were to accept membership on the HP Services Client Advisory Board, he would enter into a business association with HP; the Commission bases this opinion on the totality of the terms of the “Advisory Council Membership Agreement,” including the compensation, in the form of reimbursement, provided, as well as the fact that the Petitioner will be in a position to “help shape HP’s efforts in K-12 education” and “drive efforts towards shaping products and solutions,” and thus, will be in a leadership position that will allow him the affect the financial objectives of the organization and will be joined with HP “to achieve a common financial objective.”   

Generally, a public official such as the instant Petitioner may avoid conflicts of interest by recusing from participation in matters involving a business associate.  Here, however, the

Petitioner has stated that recusal is not a practicable option, given his position and role within the School Department.  Absent such recusal, the conflicts of interest would remain and recur.

Accordingly, the Petitioner is prohibited by the Code of Ethics from participating as a member on the HP Services Client Advisory Board, given that his duties as Director of Technology for the Pawtucket School Department require him to exercise decision-making authority where it is reasonably foreseeable that such activity will result in a direct financial gain or loss for HP.

Code Citations:

§ 36-14-2(3)

§ 36-14-5(a) 

§ 36-14-5(b)

§ 36-14-5(d)

§ 36-14-5(f)

§ 36-14-7(a) 

Commission Regulation 36-14-7001

Related Advisory Opinions:

A.O. 2010-16

A.O. 2007-58

Keywords:

Business Associate