Advisory Opinion No. 95-43

Re: Joseph A. Farrell

A. QUESTION PRESENTED

On April 24, 1995, the Rhode Island Ethics Commission received an advisory opinion request from Joseph A. Farrell, Project Director for the Assistive Technology Access Partnership. Mr. Farrell requests an advisory opinion as to whether the Advisory Council to the project falls under the jurisdiction of the Ethics Commission. If this Commission does find that the Advisory Council falls under its jurisdiction, the petitioner requests guidance as to whether the duality of status of various Council members places them in violation of the Code of Ethics.

B. SUMMARY

The Rhode Island Ethics Commission concludes that the Advisory Council to the Assistive Technology Access Partnership falls under the jurisdiction of this Commission in view of the fact that it makes government decisions and expends public funds. Consequently, we recommend that Advisory Council members, who face the possibility of participating in discussions or votes that involve the agencies by which they are employed or to which they are associated as board members, should exercise notice and recusal in such instances.

C. DISCUSSION

1. Facts

Joseph A. Farrell, the Project Director for the Assistive Technology Access Partnership, presents an advisory opinion request in two parts. First, he requests an opinion as to whether the Assistive Technology Access Partnership's Advisory Council, established under a federal grant to provide consumer feedback to himself and his superiors, falls within the jurisdiction of the Rhode Island Ethics Commission. Second, if the Advisory Council does fall within the jurisdiction of this Commission, Mr. Farrell requests an advisory opinion on behalf of several Advisory Council members concerning various potential conflicts of interest.

Mr. Farrell advises that the mission of the Assistive Technology Access Partnership, funded by a federal grant from the U.S. Department of Education's National Institute on Disability and Rehabilitation Research, is to ensure that persons with disabilities in Rhode Island have access to the assistive technology devices that they require in order to take part in all activities. The Office of Rehabilitation Services of the Department of Human Services has been designated as the lead agency in this project.

The petitioner also advises that the Advisory Council--established to provide consumer feedback and direction to the Office of Rehabilitation Services--is a key element of the project, and that the recommendations made by its members drive the decision-making process. Specifically, the Advisory Council offers advice to the Office of Rehabilitation Services on issues relevant to the Assistive Technology Access Partnership grant. Mr. Farrell advises that among the roles of the Advisory Council are the following: reviewing responses to Requests for Proposals and making recommendations for funding of particular proposals under the grant; monitoring the effectiveness of programs funded under the grant; making recommendations on the kinds of future programs to be funded by the Office of Rehabilitative Services; advocating for systematic changes in state law and policy to increase services and funding for assistive technology.

He also advises that most members of the Council are persons with disabilities who have used assistive technology devises, that no regulatory or statutory requirements mandate the establishment of the Council, and that members of the Council were appointed by the Director of the Office of Rehabilitation Services.

Mr. Farrell advises the following concerning Advisory Council members who have potential conflicts of interest:

(a) One Advisory Council member is an employee of a contractor to the Assistive Technology Access Partnership. This person's position carries neither executive authority within the contracting corporation or delegated authority to make binding decisions for the contractor. Said Council member presently serves as the Interim Chair of the Council.

(b) Another Council member is employed by the Department of Human Services, Office of Rehabilitation Services, as a Senior Rehabilitation Counselor. The Department of Human Services' Office of Rehabilitation Services is designated as the lead agency for this project.

(c) Several Council members also serve on the boards of agencies which are contractors to the Assistive Technology Access Partnership.

2. Analysis

This advisory opinion request raises the issue of the extent to which the Advisory Council's recommendations are strictly advisory or whether these recommendations drive the decisions being made by Mr. Farrell and his superiors and, as such, have the force of governmental decisions. Mr. Farrell advises that the Advisory Council's recommendations do indeed determine the decisions made on requests for proposals and other matters in that the very nature of the Council is to provide consumer feedback on various elements of the project. We conclude that given the nature of the Advisory Council's mandate, its recommendations represent "government decisions" pursuant to Regulation 36-14-7002 in that their recommendations obligate a state agency to a course of action.

In addition to the Advisory Council's decision-making role, it falls within the jurisdiction of the Ethics Commission because of the fact that the Council maintains a budget through the Office of Rehabilitation Services. The budget, though federally funded, is allocated and controlled through the State's Department of Human Services, and is used to pay for services needed by the Council and its members in order to carry out their mandate. On several occasions, this Commission's criteria for defining an advisory council's role as beyond advisory in nature has included consideration of whether the entity in question maintains control over the expenditure of public funds, including its own budget [Advisory Opinions 77-145, 79-39, 79-69, 82-03, 82-05, 82-07, 82-44, 83-30, 83-33]. In view of the fact that the Advisory Council is funded with public money, we conclude that it is not advisory in nature and, consequently, is subject to the jurisdiction of the Ethics Commission.

Mr. Farrell also advises that several Advisory Council members request opinions regarding potential conflicts of interest. One Council member, currently the interim chair of the Advisory Council, simultaneously is employed by a contractor to the Assistive Technology Access Partnership. Mr. Farrell advises that this Council member's position, as a trainer in the use of assistive technology, does not involve executive authority within the contracting corporation or delegated authority to make binding decisions on behalf of the contractor. However, given the economic interest of this Council member's employer, a contractor to the project, and given that said member's duality of status may expose her to confidential information, we conclude that she should not participate or vote on any issues involving her employer in order to avoid violating R.I. Gen. Laws § 36-14-5 (a) and (d). Specifically, in the event the interests of her employer come before the Advisory Council, she should: (a) notify the Advisory Council in writing of the nature of her interest in the matter, and (b) refrain from participating in the discussion of, or voting on, any such matter. Any recusal notices should be filed pursuant to R.I. Gen. Laws § 36-14-6.

Past Advisory Opinions have taken note of the potential conflicts inherent in a situation in which a public official sits on a government entity in which that official's employer has an interest. Advisory Opinion 93-02 deems the public official's relationship to an outside employer as that of a business associate. Advisory Opinion 92-12 notes that the duality of status could be perceived as the public member acting as an agent for an entity other than the State of Rhode Island in violation of Code Regulation 36-14-5008.

Mr. Farrell also advises that a Council member is an employee of the Office of Rehabilitation Services, designated as the lead agency in this project by the U.S. Department of Education. This Counsel member, who fills the position of Senior Rehabilitation Counselor, advises that she sits on the Advisory Council in her capacity as a consumer of assistive technology. She also advises that she does not foresee that she would ever be in a position to affect her own position as an employee of the Office of Rehabilitation Services.

Again, given the economic interest of this Council member's employer, the lead agency to the project, and the potential for exposure to confidential information, we conclude that she should not participate or vote on any issues involving her employer. This Commission advises this Council member that in the event a particular issue comes before her as a member of the Advisory Council, she should exercise notice and recuse as outlined above.

Several Council members also serve on the boards of agencies which are contractors to the Assistive Technology Access Partnership. The concern of these members is comparable to that expressed by the Council member who is employed by a contractor to the ATAP project. Accordingly, this Commission recommends that since the members in question could be deemed representatives of the agencies on which they serve as board members, they should exercise notice and recuse as outlined above when appropriate.

Keywords

Advisory Body

Code Jurisdiction

Private Employment

Dual Public Roles

Non-profit Boards

Contracts

Grants