Advisory Opinion No. 96-13

Re: Gordon D. Fox

A. QUESTION PRESENTED

A legislator serving in the House of Representatives, as a member of the House Finance Committee, who represents a district in the City of Providence, requests an advisory opinion as to whether he may represent the Providence Community Action Program, Inc. in a law suit commenced against the State of Rhode Island and the Department of Human Services in the United States District Court for the District of Rhode Island to challenge the Department's procedures for distributing federal funds.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a legislator serving in the House of Representatives as a member of the House Finance Committee, from representing the Providence Community Action Program, Inc. (ProCap) in a lawsuit against the State and the Department of Human Services. This opinion is based on the Petitioner's representations that as a member of the House of Representatives (a) he is not privy to any confidential information relating to ProCap or the State's distribution procedures; and (b) he is not required to vote or take any official action specifically relating to the funding to be allocated to ProCap. The Petitioner is cautioned to exercise notice and recusal, pursuant to R.I. Gen. Laws § 36-14-6 in the event any matter comes before the House of Representatives or the House Finance Committee relating to ProCap or the State's procedures for distributing Federal CDBG funds.

C. DISCUSSION

1. Facts

The Petitioner is a member of the House of Representatives as a representative for the City of Providence. In his private capacity, the Petitioner works as a practicing attorney. Recently, ProCap, a non-profit agency that provides assistance to needy individuals in the Providence Area,(1) retained the Petitioner to represent the agency in a suit against the State of Rhode Island and the Department of Human Services. In December 1995, the Petitioner filed this suit in the United States District Court for the District of Rhode Island. In this suit, ProCap claims that the formula used by the Department of Human Services to distribute Federal funds to non-profit agencies servicing the needy is contrary to certain federal statutory requirements. The Petitioner advises that as a member of the House of Representatives, he is not privy to any confidential information concerning ProCap or the Department of Human Services' procedures for distributing Federal funds.(2)

As a member of the House of Representatives, the Petitioner serves on the House Finance Committee, the Committee responsible for appropriations in the state budget. The Petitioner advises that, although the state budget includes a specific line item referencing the amount of Federal money allocated to the State through the Federal anti-poverty program, he is not required to vote on this specific line item or the amount of the allocation since Congress decides the amount to be provided to the State (the Department of Human Services) through the Federal anti-poverty program, the Community Development Block Grant (CDBG). The funds merely "pass through" the House of Representatives to the Department of Human Services. The Petitioner advises, however, that he will be required to vote on the final budget, which will include the line item referencing the Federal funds at issue.

2. Analysis

Under the Code of Ethics, the Petitioner, as a member of the House of Representatives, may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a).(3) Pursuant to R.I. Gen. Laws § 36-14-5(d), the Petitioner is also prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself. Additionally, the Code of Ethics prohibits the Petitioner from accepting other employment which would 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 and by reason of his official duties. See R.I. Gen. Laws § 36-14-5(b).

After considering the Petitioner's request and the relevant provisions of the Code of Ethics,(4) we conclude that the Code of Ethics does not bar the Petitioner from representing ProCap in a Federal law suit against the State and the Department of Human Services to challenge the Department's formula for the distribution of Federal anti-poverty funds. This conclusion is based on the Petitioner's representations that as a member of the House of Representatives a) he is not privy to any confidential information relating to ProCap or the State's distribution procedures; and b) he is not required to vote or take any official action specifically relating to the funding to be allocated to ProCap. However, we caution the Petitioner that in the event that any matter comes before the House or the Finance Committee relating to ProCap or the State's procedures for distributing Federal CDBG funds he should recuse himself and notify the appropriate authorities, as specified in R.I. Gen. Laws § 36-14-6.

Footnotes

(1) ProCap is one of nine agencies in the State designated to receive federal funds for anti-poverty campaigns.

(2) The Petitioner indicated that, after he filed the suit, pursuant to certain requirements under Federal law, the House Finance Committee held a public hearing relating to the disbursement of Federal grants. The Petitioner did not attend this hearing.

(3) Substantial conflict is defined as a "direct monetary gain" or a "direct monetary loss" that accrues, by virtue of the public official's activity, to that individual, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a).

(4) The provisions of Commission Regulation 36-14-5008, Acting as Agent or Attorney for Other than State or Municipality, are not relevant to this request since the Petitioner is representing ProCap in Federal Court.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-6

36-14-7(a)

36-14-5008

Keywords:

private employment

acting as agent

client's interest