Advisory Opinion No. 98-10 Re: Sisan Smallman A. QUESTION PRESENTED The Petitioner, Assistant Probation & Parole Administrator at the Department of Corrections and Chair of the Batterers Intervention Program Standards Oversight Committee, a state appointed position, requests an advisory opinion on behalf of the members of the Oversight Committee as to whether members of the Committee who are affiliated with programs for batterers may (1) vote on certification of any and all batterers intervention programs, (2) participate on subcommittees involved in program reviews, and (3) face any other potential conflicts of interest because of their dual affiliations. B. SUMMARY It is the opinion of the Rhode Island Ethics Commission that members of the Batters Intervention Program Standards Oversight Committee and its subcommittees (the Oversight Committee), state appointed positions, may not participate in any certification, appeal, variance, or other substantive matter if they are employed by or are members of the Board of Directors of an organization, or the parent or sister of that organization, that has a Batterers Intervention Program that would be affected by the matter under consideration by the Oversight Committee. The prohibition clearly includes situations in which an organization with which a member of the Oversight Committee is affiliated, and/or its parent or sister organization, is before the Committee. It also extends, however, to situations in which a matter before the Oversight Committee directly implicates a Batterers Intervention Program with which a member is not affiliated, but that would affect their own organization directly either because the member's organization is a direct competitor of the organization having a matter before the Committee or because the member's organization faces an issue directly analogous to the matter involving the other organization. Finally, the prohibition necessarily extends to the setting of general and/or universal standards that apply to all such programs unless such standards affect all Batterers Interventions Programs to no greater or lesser extent than any other Batterers Intervention Program. This opinion is consistent with previous advisory opinions that have found that the sort of affiliations seen here are business associations under the Code of Ethics and require recusal when matters affecting the organization(s) with which a member is affiliated come before them in their capacities as public officials. C. DISCUSSION 1. Facts The General Assembly enacted several amendments to the Domestic Violence Prevention Act, requiring that all domestic violence offenders attend a batterers’ intervention program that is certified as meeting minimum standards. Additionally, the revised statute established a Batterers Intervention Program Standards Oversight Committee. The Director of the Department of Corrections as Chair of the Committee designated the Petitioner as his representative on the Committee. Among its various duties, the Oversight Committee is in the process of developing rules and procedures to govern its own operation and procedures for initial certification of batterers’ intervention programs. The Committee will certify programs, investigate and decide appeals, complaints, variances and post-enrollment certification. Some members of the Oversight Committee are affiliated with existing batterers intervention programs as employees and/or officers. The Petitioner presents several inquiries regarding potential conflicts of interests for members of the Oversight Committee who are affiliated with batterers’ programs; specifically whether those members may (1) vote on certification of any and all batterers intervention programs, and (2) participate on subcommittees involved in, for instance, program reviews. The Petitioner also inquires as to what factors determine whether an Oversight Committee member’s affiliation with a Batterers Intervention Program is such that recusal may be required under the Code of Ethics. 2. Analysis The Code of Ethics provides that a public official may not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction which is in substantial conflict with the proper discharge of his/her duties in the public interest. A substantial conflict of interest occurs if the public official has reason to believe or expect that she or any family member or business associate, or any business by which she is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, the Code provides that a public official may not accept other employment which will either impair his/her independence of judgment as to his/her official duties or induce him/her to disclose confidential information acquired by her in the course of and by reason of her official duties. See R.I. Gen. Laws § 36-14-5(b). An official or employee may not use his/her public office or confidential information received through that public office to obtain financial gain, for him or herself, a business associate, or an employer. See R.I. Gen. Laws § 36-14-5(d). Finally, the Code of Ethics provides that a business associate may not appear before the public official unless the associate first advises the agency or Committee of the nature of his/her business relationship with the public official and the public official recuses himself from voting on or otherwise participating in the consideration or disposition of the matter at issue. See R.I. Gen. Laws § 36-14-5(f). In order to address the Petitioner's questions as what matters the members of the Oversight Committee and associated subcommittees may be involved with under the Code of Ethics, the Commission must first address whether a particular affiliation with an organization constitutes an employment relationship or business association. The Code of Ethics clearly states that a public official has a substantial conflict of interest if his/her employer will derive a direct monetary gain of suffer a direct monetary loss by reason of his/her official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). The Commission routinely has concluded that public officials must recuse on matters affecting their employers. See, e.g., A.O. 97-93 (Health Department Non-Disciplinary Alternative Program Advisory Panel member could not participate in matters once a nurse has chosen the Petitioner's employer to serve as her case manager). No distinction has been drawn between employees of private corporations and non-profit organizations. The Commission also has addressed whether members of an organization are "business associates" as defined by the Code at R.I. Gen. Laws§ 36-14-2(8). For instance, the Commission has concluded that so long as a member of the YMCA is not in a position at the YMCA to affect the financial objectives of the YMCA through voting or other means, such membership is not enough to rise to the level of a "business associate" under the Code of Ethics. See A.O. 96-54 However, a current member of a Board of Directors has been considered to be a "business associate" of the organization requiring recusal. See A.O. 96-58, A.O. 89-103, A.O. 92-67, A.O. 92-31, A.O. 91-07, A.O. 95-92, A.O. 91-86, A.O. 95-59. The Commission also has found that membership on a board of directors of a parent corporation is a business association or relationship that triggers the prohibitions of the Code of Ethics. See A.O. 96-46. The same analysis would apply to a sister organization if the organizations were financially connected. Therefore, an employee, director, staffer or member of the board of directors of an organization or of a parent or sister organization may not participate in matters affecting that organization, either as a member of the Oversight Committee or on one of its subcommittees. If and when a matter affecting the organization comes before the public official or employee, he or she should recuse from participation. Recusal is not limited to voting. It extends to all manner of participation: e.g., deliberations and debates, making recommendations, giving advice, considering findings, or in any other way assuming responsibility for or participating in any aspect of the work or decision-making relating to a matter. In the present context, Oversight Committee and subcommittee members affiliated with organizations that have Intervention Programs should recuse on any matters that directly impact that organization(s). This includes not only, for instance, certifications of that organization's particular program, but also matters relating to other intervention programs that could affect their own organization directly either because the member's organization is a direct competitor of the organization having a matter before the Committee or because the member's organization faces an issue directly analogous to the matter involving the other organization. Also, involvement in the development of general and/or universal standards, which will impact all intervention programs, should be avoided unless the member's Program will not be affected to any greater or lesser extent than any other Batterers Intervention Program. When recusing, the Oversight Committee or Subcommittee member must, prior to any discussion or participation, complete a statement of conflict of interest and file it with the Oversight Committee as well as forwarding (1)a copy to the Ethics Commission. See R.I. Gen. Laws § 36-14-6. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-5(f) Related Advisory Opinions: 97-93 96-46 96-54 96-58 Related Advisory Opinions Continued: 95-59 93-60 92-67 92-31 91-07 89-103 Keywords: Non-profit boards Business associates Memberships