Advisory Opinion No. 99-1

Re: Peder Schaefer

QUESTION PRESENTED

The petitioner, the Finance Director for the City of Warwick, a municipal employee position, requests an advisory opinion as to whether city employees personally may receive discounted service from cellular phone vendors that do business with the City through a discount program offered by the vendors to employees of large organizations with which they contract.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that, in general, employees of the City of Warwick personally may receive discounted service from cellular phone vendors that do business with the City, provided, however, that no official or employee who participated in the decision to award the contract to a vendor offering such discounts, or who participates in reviews of monitoring of the service provided to the City by such vendor(s), may receive the discounted service.

The Code of Ethics provides that no public official or employee a) may have an interest that is in substantial conflict with the proper discharge of his or her public duties, or b) may use in any improper way his or her public office to obtain financial gain, or c) may accept gifts or other items of value from an interested person if he/she has decision-making authority. R.I. Gen. Laws § 36-14-5(a),(d), Commission Regulation 5009. Employees of the City of Warwick who merely by virtue of being employed by the City receive a discount from vendors doing business with the City do not run afoul of these provisions. Because such employees had no role in awarding the contract to the vendor they were not in a position to use their public positions improperly to obtain financial gain. Likewise, those employees who have no role in reviewing, monitoring or supervising the vendor after the contract has been awarded would not be in a position to have the proper discharge of their public duties affected by the financial benefit that would accrue to them by virtue of the discounted service. The same rationales do not hold true for employees who would be involved in either the decision-making process for awarding any such cellular phone contract(s) and employees who would review or monitor the vendor(s) once the contract(s) had been awarded. We conclude that those presumably narrow categories of officials or employees may not receive the financial benefit that would result from discounted service. Also, because these categories of employees would have substantive roles relative to the awarding and/or monitoring of the contracts and/or vendors they are not members, with the other employees, or a significant and definable class of persons so as to be exempted from the prohibitions outlined above. See R.I. Gen. Laws § 36-14-7(b).

Finally, the petitioner advised that the discounts are offered to employees of, in this instance, City government because the increased volume of subscribers and calls benefit the vendors and the City also is likely to save money because of the additional call volume that is generated by those additional private customers. At the staff’s request the petitioner inquired of the vendors why then such discounts could not be offered more broadly to, for instance, all residents of the City of Warwick. The sum and substance of the responses received to those inquiries were, in essence, because that is not the way the discount programs are designed to work.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-7(b)

36-14-5009

Keywords:

Class exception

Discretionary authority

Financial interest

Gifts

Vendors