Advisory Opinion No. 2021-32 Rhode Island Ethics Commission Advisory Opinion No. 2021-32 Approved: April 27, 2021 Re: The Honorable Mary Ann Shallcross Smith QUESTION PRESENTED : The Petitioner, a legislator serving as a member of the Rhode Island House of Representatives, a state elected position, requests an advisory opinion regarding whether the Code of Ethics permits her to accept appointment to the Permanent Legislative Commission on Child Care in Rhode Island, in her capacity as a State Representative, given that the Petitioner owns and/or manages a number of child care centers in Rhode Island. RESPONSE : It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a legislator serving as a member of the Rhode Island House of Representatives, a state elected position, is not prohibited by the Code of Ethics from accepting appointment to the Permanent Legislative Commission on Child Care in Rhode Island, in her capacity as a State Representative, notwithstanding that the Petitioner owns and/or manages a number of childcare centers in Rhode Island. The Petitioner was elected to the Rhode Island House of Representatives in November of 2020 and represents the 46th District in Lincoln and Pawtucket. In her private capacity, the Petitioner has owned and operated a number of child care centers since 1972. She states that she currently owns ten, for-profit, licensed child care centers and manages another six, nonprofit, licensed child care centers, all of which are located in Rhode Island. The Petitioner informs that she is interested in serving on the Permanent Legislative Commission on Child Care in Rhode Island (“Child Care Commission”) in her capacity as a State Legislator. According to information received from the House Policy Analyst, the Child Care Commission was established by a Joint Resolution of the General Assembly in July of 1989. Its purpose is to ensure that Rhode Island has a network of child day care services that provide for quality, affordable and accessible child care in Rhode Island and to act as an advisory body to the child day care division of the Department of Human Services (“DHS”) and to the day care licensing department of the Department of Children, Youth & Families (“DCYF”),in order to adequately plan for the state’s current and future need for quality, affordable and accessible child day care. The Child Care Commission initially consisted of twenty-five (25) members. The Joint Resolution was eventually amended to require the chairperson of the Child Care Commission to maintain a list of a maximum of thirty-five (35) voting members, three of which are to be members of the House of Representatives appointed by the Speaker of the House; two of which are to be Senators appointed by the Senate President; and the remainder of which represent state government agencies, provider associations or networks, resource organizations, family/youth, advocates and researcher organizations, business and economic policy, and private philanthropy. Child Care Commission members do not receive any compensation for their services. The Petitioner represents that the chairperson of the Child Care Commission is selected from among the legislators serving on the Child Care Commission. The Petitioner further represents that the Child Care Commission does not have a budget, is only advisory in nature and, among other things, collects and presents information to the DHS and DCYF, drafts legislation, reviews proposed legislation, and its members sometimes testify before the General Assembly on various child care matters. The Petitioner states that any legislation drafted by the Child Care Commission has to then be sponsored and introduced by a state legislator, often by its chairperson, and voted on by the General Assembly. The Petitioner represents that for the last five years she has served on the Child Care Commission on behalf of child care centers as a member of the Business Owners in Childcare Association (“BOCA”).[1] The Petitioner informs that, on April 1, 2021, she resigned from both her position as a member of BOCA’s Board of Directors and as BOCA’s legislative liaison. The Petitioner’s recent disassociation from BOCA also marked the end of her membership on the Child Care Commission.[2] Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether the Code of Ethics allows her, in the event of vacancy, to accept appointment by the Speaker of the House of Representatives to the Child Care Commission in her capacity as a State Representative. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A public official will have an interest that is in substantial conflict with the proper discharge of her public duties if she has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of her official activity, to the official herself, any person within her family, her business associate, her employer, or any business that she represents. Section 36-14-7(a). Additionally, section 36-14-5(d) of the Code of Ethics prohibits a public official from using her position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself, any person within her family, her business associate or her employer. A public official must also recuse from participation when her business associate or employer appears or presents evidence or arguments before her state or municipal agency. Commission Regulation 520-RICR-00-00-1.2.1(A)(2) Additional Circumstances Warranting Recusal (36-14-5002) (“Regulation 1.2.1”); section 36-14-5(f). Lastly, section 36-14-5(e) (“section 5(e)”) prohibits a public official or employee from representing herself, representing another person, or acting as an expert witness before a state or municipal agency of which she is a member or by which she is employed. Section 5(e)(1) - (3); see also Commission Regulation 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016). Section 5(e)’s prohibitions continue while the official remains in office and for a period of one year thereafter. Section 5(e)(4). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7). In the instant matter, nothing in the Code of Ethics prohibits the Petitioner from being appointed by the Speaker of the House of Representatives to serve as a member of the Child Care Commission in her capacity as a State Representative. However, the Petitioner should be aware and consider that, although the Code of Ethics does not prohibit her service on the Child Care Commission, it does regulate the manner and extent of the performance of her duties. Although the Child Care Commission is only advisory in nature, the Petitioner’s service on it would be an extension of her duties as a duly elected member of the House of Representatives. Therefore, any restrictions that the Code of Ethics may place upon her ability to carry out her duties as a State Representative would extend to the performance of her duties as a member of the Child Care Commission. For example, in Advisory Opinion 2004-6, a State Representative sought the advice of the Ethics Commission regarding whether her spouse’s employment by Memorial Hospital of Pawtucket prohibited or limited her service as a member of the General Assembly’s Permanent Joint Committee on Health Care Oversight (“Committee”), the duties of which were to monitor, study, report and make recommendations on all areas of health care provision, insurance, liability, licensing, cost and delivery of services, and the adequacy, efficacy and efficiency of statutes, rules, regulations, guidelines, practices, and programs related to health care, long term care, or health insurance coverage in Rhode Island. In that advisory opinion, the Ethics Commission opined that there was no indication that the petitioner or her spouse stood to be financially impacted solely by reason of her membership on the Committee and, therefore, the petitioner’s membership on the Committee was not prohibited by the Code of Ethics. However, the petitioner was required to recuse from participation in matters in which it was reasonably foreseeable that her spouse would derive a direct financial gain or suffer a direct financial loss by reason of her official activity. The petitioner was further cautioned to be diligent in identifying such matters and to either recuse from participation or seek further guidance from the Ethics Commission. See also A.O. 2019-20 (opining that a State Senator was not prohibited by the Code of Ethics from serving as the Chairperson of the Senate Committee on Labor, notwithstanding that he worked as a consultant for the Rhode Island Judicial, Professional and Technical Employees’ Local Union 808, and had previously been employed as a Field Representative for the Rhode Island Laborers’ District Council and as Business Manager for Local Union 808, provided that he recused from any matter that came before him either in his capacity as Chairperson of the Labor Committee or as a member of the Senate and which directly impacted his business associate). Similarly, here the Petitioner is cautioned that, if appointed, she will be generally required to recuse from taking any official action, including discussions and voting on any matter that is likely to result in direct a financial benefit or detriment to her, any person within her family, her business associate, or her employer, unless the specific circumstances justify the application of the class exception as set forth in section 36-14-7(b).[3] The Petitioner would also be required to recuse herself from participation in discussions and voting on matters for which her business associate or employer, or her business associate or employer’s authorized representative, appears or presents evidence or arguments before the General Assembly or the Childcare Commission unless one of the exceptions to Regulation 1.2.1(B) applies.[4] The Petitioner is also prohibited from representing herself or any other person before the General Assembly or the Child Care Commission. See Section 5(e). Recusal shall be consistent with section 36-14-6. This advisory opinion cannot anticipate every possible situation in which a conflict of interest might arise and, thus, provides only general guidance as to the application of the Code of Ethics based upon the facts represented above. The Petitioner is encouraged to seek additional advice from the Ethics Commission in the future as more specific questions regarding potential conflicts of interest arise. This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations : § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-5(e) § 36-14-5(f) § 36-14-6 § 36-14-7(a) § 36-14-7(b) 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002) Related Advisory Opinions A.O. 2019-20 A.O. 2004-6 Keywords Business Associate Class Exception Recusal [1] BOCA is a nonprofit professional association of business owners and operators of center-based child care and early childhood education programs in Rhode Island who advocate for early childhood teachers and programs in Rhode Island. See https://bocari.org/#about (last accessed on April 9, 2021). [2] The Petitioner states that she has not represented BOCA as a member of the Child Care Commission since December 31, 2020, and, instead, other BOCA board members have been attending the Child Care Commission meetings. [3] Section 36-14-7(b) states that a public official will not have an interest which is in substantial conflict with her official duties if any benefit or detriment accrues to her, any person within her family, her business associate, or any business by which she is employed or which she represents “as a member of a business, profession, occupation or group, or of any significant and definable class of persons within the business, profession, occupation or group, to no greater extent than any other similarly situated member of the business, profession, occupation or group, or of the significant and definable class of persons within the business, profession, occupation or group.” When determining whether any particular circumstance supports and justifies the application of the class exception, the Ethics Commission considers the totality of the circumstances. Among the important factors considered are: 1) the description of the class; 2) the size of the class; 3) the function or official action being contemplated by the public official; and 4) the nature and degree of foreseeable impact upon the class and its individual members as a result of the official action. [4] Regulation 1.2.1(B) states that: A person subject to this Code of Ethics is not required to recuse himself or herself pursuant to this or any other provision of the Code when: 1. The person's business associate, employer, household member or any person within his or her family is before the person's state or municipal agency, solely in an official capacity as a duly authorized member or employee of another state or municipal agency, to participate in non-adversarial information sharing or coordination of activities between the two agencies, provided that the business associate, employer, household member or person within his or her family is not otherwise a party or participant, and has no personal financial interest, in the matter under discussion. 2. The person's business associate, employer, household member or any person within his or her family is before the person's state or municipal agency during a period when public comment is allowed, to offer comment on a matter of general public interest, provided that all other members of the public have an equal opportunity to comment, and further provided that the business associate, employer, household member or person within his or her family is not otherwise a party or participant, and has no personal financial interest, in the matter under discussion.