Advisory Opinion No. 2010-38 Rhode Island Ethics Commission Advisory Opinion No. 2010-38 Re: Paul J. Agatiello, MD, FACP QUESTION PRESENTED The Petitioner, a physician at the Rhode Island Veterans' Home, a state employee position, requests an advisory opinion concerning whether and to what extent he may participate in campaigning and fundraising activities on behalf of a political candidate. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a physician at the Rhode Island Veterans' Home, a state employee position, is not prohibited by the Code of Ethics from participating in campaigning and fundraising activities on behalf of a political candidate, provided that he perform all such activities on his own time and without the use of any public resources, and that he not solicit any political contributions from his subordinates. The Petitioner is a physician at the Rhode Island Veterans' Home in Bristol, Rhode Island. He states that he wishes to engage in fundraising and campaigning activities on behalf of a candidate for the office of Governor of Rhode Island. In particular, the Petitioner questions whether, given his status as a public employee, the Code of Ethics regulates his ability to engage in six specific types of political activities: (1) sponsoring a fundraiser; (2) sending out mailings containing his name and photograph; (3) placing a bumper sticker on his car; (4) placing a photo of himself and the candidate in a newspaper; (5) placing his name in a newspaper in support of the candidate; and (6) sending out email solicitations for campaign contributions and other support. For the purposes of this advisory opinion, we need not address each question separately since all six concern political activities that are similarly regulated by the below provisions of the Code of Ethics. Under the Code of Ethics, a public employee may not have any interest which is in substantial conflict with the proper discharge of his duties or employment in the public interest. 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. R.I. Gen. Laws § 36-14-7(a). The Petitioner may not use his public office in any way to obtain financial gain for himself, his family, his business associates, or other employer. R.I. Gen. Laws § 36-14-5(d). Additionally, he may not accept other employment which will either impair his independence of judgment as to his official duties or require him, or induce him, to disclose confidential information acquired by him in the course of his official duties. R.I. Gen. Laws § 36-14-5(b). Finally, the Code of Ethics prohibits a public employee such as the Petitioner from soliciting or requesting any political contributions from a subordinate for whom, in his official duties and responsibilities, he exercises supervisory responsibilities. Commission Regulation 36-14-5011(b). For the purposes of this prohibition on solicitations, the term "subordinate" includes other employees, contractors, consultants, or appointed officials within the Rhode Island Veterans' Home. Commission Regulation 36-14-5011(c). We addressed a similar issue during the last gubernatorial election in Advisory Opinion 2006-41. There, the Director of Municipal and External Affairs in the Office of the Governor, a state employee position, asked whether the Code of Ethics permitted her to serve as the Honorary Chair of the Carcieri for Governor Committee ("the Committee") on her personal time or after business hours, and with no involvement of state employees, equipment or resources. We opined that such private political activity was not prohibited by the Code of Ethics because: (1) the Committee was not a governmental agency; (2) the petitioner did not hold a public position concerning elections; and (3) public resources and time would not be used in the pursuit of political activity. We also cautioned the petitioner "that pursuant to Commission Regulation 5011 she may not solicit her subordinates for the purchase of fundraising tickets and/or other political contributions on behalf of the Campaign Committee." Id. (citing Regulation 36-14-5011). Similarly, in Advisory Opinion A.O. 98-109, we determined that the Code of Ethics did not prohibit an Administrative Assistant to the Westerly Finance Director, a municipal employee position, from volunteering to assist a candidate in his campaign for State Representative for the 51st District in Westerly. This opinion was based upon representations that: (1) the campaign activity concerned the public employee’s private conduct outside the scope of her public duties; (2) the public employee did not hold a public position concerning elections; and (3) public resources and time would not be used in the pursuit of political activity. See also A.O. 2008-1 (Member of Johnston Board of Canvassers is not prohibited from participating in political fundraising, soliciting political party memberships, making political contributions, or writing letters to the editor and editorials concerning political issues); A.O. 2007-12 (A potential Providence Housing Court Judge may participate in political activity involving candidates for municipal, state and federal office, provided that he uses no public time or resources in the pursuit of such activities); A.O. 2005-42 (Providence Municipal Court Judge may appear in his son's political advertisements in campaign for General Treasurer); A.O. 2002-35 (North Providence Town Solicitor may serve as treasurer of Mayor's reelection campaign committee). Consistent with these past advisory opinions, and provided that the Petitioner refrains from soliciting contributions from his subordinates and from conducting any political activities during the hours of his public employment or with the use of any public resources, the Code of Ethics does not prohibit the Petitioner from engaging in the political fundraising and campaigning activities described in his request for an advisory opinion. However, the Petitioner is advised that this opinion only addresses the application of the Code of Ethics and does not address whether any other statutes, rulings, regulations or policies, including the personnel policies of the Rhode Island Veterans' Home, prohibit or regulate any of the Petitioner's proposed political activities. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-7(a) Regulation 5011 Related Advisory Opinions: 2008-1 2007-12 2006-41 2005-42 2002-35 2001-72 2001-64 2000-10 99-38 98-109 Keywords: Political activity