Advisory Opinion No. 98-20

Re: Anne Spaulding, M.D.

A. QUESTION PRESENTED

The Petitioner, the Medical Program Director at the Department of Corrections (the DOC), a state employee position, requests an advisory opinion as to 1) whether in relation to her participation on a panel at a conference to be held in LaJolla, California, she may accept travel and other expenses from the sponsoring pharmaceutical company, a vendor that does business with the DOC, and 2) whether she may serve on a speakers' bureau sponsored by a vendor doing business with the state, receiving travel expenses and/or honoraria for speaking engagements.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Medical Program Director at the Department of Corrections (the DOC), a state employee position, 1) may not accept any goods or services from a vendor that does business with her agency, and 2) may not accept payment of honoraria from a vendor doing business with the state unless a) the particular speaking engagement is not part of her official duties and responsibilities and b) it is her intention to recuse from participation in any future matters affecting the vendor and her agency. First, the Petitioner is a procurement official as defined in R.I. Gen. Laws § 36-14.1-1 and, therefore, she may not “accept goods or services for [her] personal use for less than fair market value from a state vendor” that has done business with her agency within the past 24 months or is likely to do so within the next 24 months. R.I. Gen. Laws § 36-14.1-2(b). In past advisory opinions the Commission consistently has found that payments and/or reimbursements flowing directly from third parties to public officials and employees for travel and related expenses confer a personal benefit and, therefore, constitute “gifts” for purposes of the disclosure and prohibited activities sections of the Code of Ethics. In some circumstances, such payment and/or reimbursement may be allowable under the Code of Ethics provided the direct recipient of the payment or reimbursement is not a particular official or employee; i.e., an agency receives the funds and independently designates one of its members or employees to attend or participate in the vendor-sponsored event.

Second, the receipt of honoraria from a vendor that does business with the Petitioner’s agency triggers the prohibitions set out in R.I. Gen. Laws § 36-14-5(d), which proscribes the use of public office to obtain financial gain, and R.I. Gen. Laws § 36-14-5(b), which provides that no official or employee “may accept other employment which will impair his or her independence of judgment as to his or her official duties or employment.” See also R.I. Gen. Laws § 36-14-5(a). The effect of these provisions is to allow the Petitioner to receive honoraria for a presentation that relies on her prominence or expertise in a particular field of endeavor, but to prohibit the receipt honoraria for presentations that directly relate to her official duties with the state. Assuming the Petitioner may accept an honorarium, she would then be required to recuse from decisions as Medical Director regarding the vendor(s) responsible for the payment.

C. DISCUSSION

1. Facts

The Petitioner is the Medical Program Director at the Department of Corrections (the DOC). As part of that job, she also works as a part-time staff physician at Rhode Island Hospital. Many of the patients she sees at the Hospital are HIV positive.

Bristol-Myers Squibb is a pharmaceutical company that provides products to the DOC. They have asked the Petitioner to serve on a panel called the "Correctional Health Care Distinguished Faculty in HIV." For participating on the panel the Petitioner would receive tuition, travel and lodging for a meeting in LaJolla, California. Additionally, the company may provide a journal subscription valued at approximately $100.

The Petitioner also may be asked to serve on a speakers’ bureau sponsored by a vendor that does business with the state. For speaking engagements she would receive travel expenses and honoraria of approximately $1,000. The Petitioner believes that she would be asked to speak due, in part, to her work in infectious disease at Rhode Island Hospital. Also, the Petitioner would take personal time to give the talks.

2. Analysis

The Code of Ethics provides that the Petitioner shall 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 her duties in the public interest. A substantial conflict of interest occurs if the Petitioner 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. R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, the Code provides that the Petitioner may not use her office for pecuniary gain. See R.I. Gen. Laws § 36-14-5(d). Also, under R.I. Gen. Laws § 36-14.1-2, a state procurement official may not accept goods or services for his or her personal use for less than fair market value from a state vendor who has sold goods or services to the agency during the preceding 24 months or who will be submitting a bid in the succeeding 24 months. A procurement official includes officials and employees who have the authority to make decisions concerning the purchasing of goods or services for a state agency or who have supervisory authority over the person empowered to make decisions concerning the purchase of goods or services for the state agency. See R.I. Gen. Laws § 36-14.1-1(a).

The Petitioner is the Medical Program Director at the DOC. In that role, she makes decisions as to which drugs will be used at DOC. Therefore, she is a "procurement official" as defined by R.I. Gen. Laws § 36-14.1-1(a), at least with respect to pharmaceutical companies. As such, the Petitioner may not personally accept any goods or services from a vendor. However, this would not prohibit the vendor from providing a journal subscription to the DOC rather than to the Petitioner, provided it is not intended to influence the decisions of DOC officials and employees. See R.I. Gen. Laws § 36-14-5(g). Additionally, as discussed in General Commission Advisory 12, in certain circumstances these prohibitions may not apply when a vendor provides a donation to the public agency, rather than to an individual member or employee, and the agency independently determines that a member or employee may travel on its behalf.

If the Petitioner is offered an honorarium for a speech, it does not fall within the above provisions. However, Sections 5(a) and 5(d) of the Code are implicated. In a recent opinion, A.O. 97-111, the Commssion concluded that the Director of the Office of Managed Care, Department of Human Services, could not accept an honorarium for participating in a seminar at the National Conference of State Legislators due, in part, to the fact that she would be speaking about a program that she administered in her capacity as a state employee. Since her participation in the seminar would be directly related to her public position, she could not be compensated for it. Additionally, the Commission concluded that neither the use of personal time by the employee nor the fact that the seminar took place out of state qualified the activity as personal rather than official. In another recent advisory, A.O. 96-115, the Commission concluded that the Director of the DEM could accept direct travel payments from a seminar sponsor for an event at which he was speaking because the payor was not a vendor doing business with his agency. The opinion provided, however, that if the party paying for his travel expenses had future occasion to appear before him in his position as Director, he must recuse himself from participation in accordance with Section 6 of the Code of Ethics.

Here, the Petitioner advises that she believes that she is being asked to participate in the speakers’ bureau because of her work in infectious diseases, which clearly touches upon her work at Rhode Island Hospital for the DOC. Whether or not the Petitioner may accept an honorarium for a particular speaking engagement would depend on whether the sort of presentation she would be making could be considered part of her official duties and responsibilities on behalf of the DOC and Rhode Island Hospital. That will hinge on a variety of factors including the subject matter of the presentation and whether any state time or resources were to be used in its preparation. While in some instances it may be relatively easy to tell on which side of the line a particular speaking engagement falls, often resort to a specific advisory opinion request may be necessary. If, however, the Petitioner does accept an honorarium from a vendor, or a collection of vendors, she must recuse from decisions regarding that vendor(s) in her position at the DOC. See R.I. Gen. Laws § 36-14-5(a).

Code Citations:

36-14.1-1

36-14.1-2

36-14-5(a)

36-14-5(d)

Related Advisory Opinions:

GCA 12

96-115

97-111

Keywords:

Honoraria

Purchasing

Travel

Vendors