Advisory Opinion No. 2010-44 Rhode Island Ethics Commission Advisory Opinion No. 2010-44 Re: Major Michael P. Quinn QUESTION PRESENTED The Petitioner, Chairperson of the Criminal Justice Policy Board (“CJPB”), a state appointed position, requests an advisory opinion on behalf of the members of the CJPB, as to whether members of that entity must recuse from voting to approve spending allocations performed by the Public Safety Grant Administration Office, when the public agency or department that otherwise employs the member will be the recipient of funds. RESPONSE: It is the opinion of the Ethics Commission that members of the Criminal Justice Policy Board need not recuse from voting to approve spending allocations performed by the Public Safety Grant Administration Office, notwithstanding the fact that the individual member’s public agency or department will be the recipient of funds, provided that there will be no direct financial impact to the individual member, persons within the member’s family, business associates, or any business by which the member is employed. The Petitioner is the Chairperson of the Criminal Justice Policy Board. He states that R.I. Gen. Laws § 42-26-3 creates a Public Safety Grant Administration Office (“PSGAO”) and that all spending allocations performed by the PSGAO are reviewed and approved by the Criminal Justice Policy Board (“CJPB”). Pursuant to R.I. Gen. Laws § 42-26-6, the CJPB is composed of: the Attorney General; the Superintendent of the State Police and Director of the Department of Public Safety; the Public Defender; the Director of the Department of Corrections; the Director of the Department of Human Services; the Director of the Department of Mental Health, Retardation, and Hospitals; the Chairperson of the State Board of Regents; the Director of the Department for Children and their Families; the Chief Justice of the Family Court; the President of the Rhode Island Police Chiefs Association; one police chief selected by the Rhode Island Police Chiefs Association; the Chief Justice of the Supreme Court; the Presiding Justice of the Superior Court; the Chief Judge of the District Court; seven members of the General Assembly with four members from the House of Representatives and three from the Senate; the Executive Director of the Rhode Island League of Cities and Towns; the Director of Health; the Director of the Division of Fire Safety; one university or college faculty member with a research background in criminal justice; four citizens; and three representatives from community service organizations. It should be noted that this advisory opinion is directed to those members of the CJPB who hold dual public roles, that is, those who are members of the CJPB and also hold another public position, such as the Attorney General or the Director of the Department of Corrections, and does not apply to those CJPB members whose only public position is membership on the CJPB, such as a representative from a private community service organization, who is a person subject to the Code of Ethics only by way of his or her membership on the CJPB. The Petitioner represents that, pursuant to R.I. Gen. Laws § 42-26-4(9), one of the duties of the CJPB is to “[a]pply for, contract for, receive, and expend for its purposes any appropriations or grants from the state, its political subdivisions, the federal government, or any other source, public or private, in accordance with the appropriations process.” The Petitioner further states that it is not uncommon for a single vote as to funding allocation to financially impact five or six different state agencies, including many of the agencies that the individual CJPB members otherwise direct or exercise decision-making authority over. Accordingly, given the composition of the membership of the CJPB and the duty imposed upon the Board by R.I. Gen. Laws § 42-26-4(9), the Petitioner requests an advisory opinion regarding whether members of the CJPB must recuse from discussion and vote regarding funding allocations which could result in a direct financial benefit to the public departments and agencies which those members are otherwise employed by and/or exercise decision-making authority over. Under the Code of Ethics, a person subject to the Code of Ethics may not participate in any matter in which he or she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his or her duties and employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). A person subject to the Code will have an interest in substantial conflict with his or her official duties if he or she has a reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of his or her official activity, to the official, family members, a business associate, an employer, or any business which the official represents. See R.I. Gen. Laws § 36-14-7(a). Persons subject to the Code are also prohibited from using their public positions or confidential information received through their 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 members of one public entity, the CJPB, from taking action as members of that entity that will result in a financial impact to other public entities, by which the member is either employed and/or has decision-making authority over. In the past, this Commission has opined that state and municipal agencies are not to be considered "businesses" or "business associates" as those terms are defined in 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 nor 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). Indeed, this Commission has issued a prior advisory opinion, 2008-61, that is directly on point. In that advisory opinion, a member of the CJPB, who is also the Commissioner of Public Safety and Superintendant of the State Police, asked whether he must recuse from voting as a member of the CJPB to approve spending allocations performed by the Public Safety Grant Administration Office, given that the PSGAO falls under the direction of the Commissioner of Public Safety. In that advisory opinion, this Commission opined that the Petitioner was not a business associate of the CJPB, the PSGAO, or any of the other divisions within the Department of Public Safety, and that, absent any other relevant fact that would implicate the prohibitions found in the Code, he need not recuse, given that his “actions will not be financially impacting himself, any person within his family or any business associate.” Thus, it is the opinion of this Commission that the relationship between any given member of the CJPB and the public agency that the individual is otherwise employed by and/or exercises decision-making authority over, as well as the member’s 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 members of the CJPB who hold dual public roles are not prohibited from voting to approve grant funding allocations, notwithstanding the fact that a public agency that the member is employed by or exercises decision-making authority over will be financially impacted as a result, provided that the member’s actions will not be financially impacting the member individually, any person within the member’s family, any business associate or private employer. 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"). Members of the CJPB are cautioned, however, that if any matters should come before them 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 that member personally, he or she 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(d) § 36-14-5(f) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2008-61 A.O. 2008-50 A.O. 2003-31 A.O. 2002-63 A.O. 2002-55 Keywords: Business Associate Dual Public Roles