Advisory Opinion No. 97-78

Re: Wallace Gernt

QUESTION PRESENTED

The Petitioner, an appointed member of the Health Services Council (the Council), a public commission of the State of Rhode Island, a state appointed position, requests an advisory opinion as to whether he may participate in deliberations and actions of the Council given that in his private employment as the Director of Fund Development/Public Relations for Marathon, Inc. (Marathon), a non-profit, charitable organization, he solicits funding and/or donations from various hospitals, educational institutions, insurance companies and other entities, some of which may appear before the Council.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Health Services Council member, a state appointed position, may not participate in matters directly affecting entities that are present or potential future targets of solicitations for Marathon. The Code of Ethics provides that a public official may not participate in any official action when he or she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his or her duties or employment in the public interest. A substantial conflict includes potential financial benefit for the official, a family member, a business associate, and/or a business by which the official is employed. R.I. Gen. Laws § 36-14-5(a). Further, an official may not have private employment that impairs his or her independence of judgment as to his or her official duties. R.I. Gen. Laws § 36-14-5(b).

Those provisions do not prohibit public officials from using their own time, resources or private employment for private fundraising activities; provided, however, that there is no intersection between the private solicitations and the official's public responsibilities. See R.I. Gen. Laws § 36-14-5 & 7. Therefore, while the Petitioner may serve as a member of the Council, he may not participate in any matters directly affecting entities that are present or potential future targets of solicitations for Marathon; in those instances he should follow the guidelines for recusal in R.I. Gen. Laws § 36-14-6. In specific instances, however, even if a matter likely would have a direct impact on an entity with which the Petitioner had dealings in his private employment, the public policy matter at issue may be of such widespread import and/or would effect the particular entity to no greater extent than a significant and definable class of similarly situated entities, the "class exception" to the general conflict of interest rules stated above may apply and the Petitioner could act in his public capacity. By definition, however, those instances need be addressed on a case-by-case basis.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-6

36-14-7

Related Advisory Opinions:

96-97

95-42

94-9

Keywords:

private employment

solicitation