Advisory Opinion No. 95-111

Re: Ruth Glassman, Esq.

A. QUESTION PRESENTED

Whether an employee in the Office of the Mental Health Advocate, whose husband is a physician in private practice, may participate as an appointed member or observer on study commissions related to managed care issues in her official capacity.

Whether the above named employee may testify before members of the General Assembly concerning matters which may affect the client population she serves.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that an employee in the Office of the Mental Health Advocate, whose spouse is a physician in private practice, may participate as an appointed member or observer on study commissions related to managed care issues in her official capacity. Based on the petitioner's representations the Commission concludes that the study commissions are purely advisory in nature and, consequently, will not engage in any official actions that fall within the jurisdiction of the Ethics Commission, In rendering this opinion, the Ethics Commission is relying on the provisions of the Rhode Island General Laws which indicate that any action by the petitioner, as a member or participant of the aforementioned study commissions, will be advisory in nature and subject to the review and acceptance of other bodies. In view of these layers of action and review, we conclude that the petitioner's participation will not result in any financial benefit to her spouse.

This Commission also concludes that the petitioner may testify during legislative hearings concerning issues which may affect the client population she serves provided that her participation in her official capacity does not benefit her spouse to a greater extent than any other similarly situated physician. See R.I. Gen. Laws § 36-14-7(b).

Notwithstanding this ruling, the petitioner is cautioned and advised that in the event any matter appears before her in her official capacity as an employee in the Office of the Mental Health Advocate which individually affects her spouse, she should: (a) notify the Office of the Mental Health Advocate, in writing, of the nature of her interest in the matter, and (b) refrain from participating in any such matter.

C. DISCUSSION

1. Facts

Ruth Glassman is employed part-time with the State of Rhode Island's Office of the Mental Health Advocate. Her responsibilities include advocating on behalf of individuals with mental illness who are also insured by public and private health insurance. Ms. Glassman advises that recently much of her work has focused on managed health issues. To effectively advocate for the client population she serves, the petitioner contributes in a variety of ways to the formulation of policy on managed care. For example, she has been appointed to the Special Senate Commission to Study the Utilization and Provisions of Health Care Services for Persons with Mental Illness Under Managed Care.

The petitioner also advises that she would like to attend the meetings of and participate as an observer on the Special Legislative Commission to Study Managed Care Plans and Their Impact on Patients' Ability to Make Choices Relating to Their Health Care Providers (the "Patients/Provider Rights Commission") towards contributing to the discussion and development of future legislation. The petitioner advises that the latter Commission developed from last year's Patient/Provider Rights Preservation Act, Chapter 23-17.13. Ms. Glassman further advises that in addition to attending and participating in meetings related to managed care issues that may impact mental health services, she hopes to testify in the legislature and elsewhere on issues which may impact the client population she serves.

In addition, the petitioner advises that her husband is a licensed, board certified dermatologist currently in private practice in Rhode Island. As well as serving as an attending physician on the staff of several hospitals in the state, he is also an Assistant Professor of Medicine at the Brown University School of Medicine.

The petitioner advises that previously all of her official responsibilities related to managed care have been related to mental health issues. At this juncture, however, the study commissions' findings may have an impact on her husband's practice and the practice of physicians generally in Rhode Island. Ms. Glassman writes that, to her knowledge, she does not expect that her husband would be affected any differently than any other similarly situated physician. However, she requests an advisory opinion as to whether she may participate in the Patient/Provider Rights Study Commission and other comparable advisory panels, as well as legislative hearings and other activities, in view of the fact that her spouse could potentially be affected by the outcomes of her participation.

2. Analysis

At issue in this advisory opinion is whether an employee in the Office of the Mental Health Advocate may participate as an appointed member of a commission in managed care and an observer and participant in the Patient/Provider Rights Commission, as well as other advisory panels, hearings, and other activities, in view of the fact that her husband is a physician in private practice. Relevant provisions of the Code of Ethics include the following:

R.I. Gen. Laws § 36-14-5 Prohibited Activities.

(a) No person subject to this Code of Ethics shall have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his or her duties or employment in the public interest and of his or her responsibilities as prescribed in the laws of this state, as defined in section 36-14-7.

(d) No person subject to this Code of Ethics shall use in any way his or her public office or confidential information received through his or her holding any public office to obtain financial gain, other than that provided by law, for him or herself or any person within his or her family or business associate or any business by which the person is employed or which the person represents.

(e) No person subject to this Code of Ethics shall:

(2) Represent any other person before any state or municipal agency of which he or she is a member or by which he or she is employed.

It is the opinion of the Rhode Island Ethics Commission that an employee in the Office of the Mental Health Advocate, whose spouse is a physician in private practice, may participate as an appointed member or observer on study commissions related to managed care issues in her official capacity. Based on the petitioner's representations we conclude that the study commissions are purely advisory in nature and, consequently, will not engage in any official actions that will fall within the jurisdiction of the Ethics Commission. In rendering this opinion, we are relying on the provisions of the Rhode Island General Laws which indicate that any action by the petitioner, as a member or participant of the aforementioned study commissions, will be advisory in nature, and subject to the review and acceptance of other bodies. In view of these layers of action and review, we conclude that Ms. Glassman's participation will not result in any financial benefit to her spouse. This Commission has previously ruled that members of purely advisory bodies are not subject to the requirements of the Code pursuant to R.I. Gen. Laws § 36-14-4 ("Persons Subject to the Code"). See Advisory Opinions 87-16, 89-17, 89-35, 89-55, and 90-51. Also, to the extent an entity acts in an advisory capacity, none of its members will engage in any official actions that fall within the prohibitions of the Code.

This Commission also concludes that the petitioner may testify during legislative hearings concerning matters which may affect the client population which she serves, provided that her participation in her official capacity does not benefit her spouse to a greater extent than any other similarly situated physician. See R.I. Gen. Laws § 36-14-7(b).

Notwithstanding this ruling, Ms. Glassman is cautioned and advised that in the event any matter appears before her in her official capacity as an employee in the Office of the Mental Health Advocate which individually affects her spouse, she should: (a) notify the Office of the Mental Health Advocate, in writing, of the nature of her interest in the matter, and (b) refrain from participating in any such matter.

Keywords

Nepotism

Family: Private Employment

Advisory Body

Lobbying