Advisory Opinion No. 99-35

Re: Joseph E. Smith

A. QUESTION PRESENTED

The petitioner, the Executive Director of the Governor's Justice Commission (GJC), a state appointed position, requests an advisory opinion on behalf of the GJC as to 1) whether the Violence Against Women Act (VAWA) Planning Committee may submit funding recommendations to the Policy Board; 2) whether certain grant programs must go through a formal Request for Proposal (RFP) process before allocating funds; and 3) whether the Steering Committee may review the proposals for merit and submit funding recommendations to the Policy Board, if a RFP is required.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Violence Against Women Act (VAWA) Planning Committee from submitting funding recommendations to the Policy Board so long as a formal recusal policy is implemented requiring Planning Committee members to recuse in matters where they have a conflict of interest under the Code of Ethics, i.e. not participating in matters affecting their employer or non-profit organization where the member sits as a member of the Board of Directors of the nonprofit organization. Whether particular grant programs should go through a formal Request for Proposal (RFP) process or whether the Steering Committee could review the proposals are not matters that fall within the purview of the Code of Ethics. However, the manner in which such processes work may implicate the provisions of the Code of Ethics.

C. DISCUSSION

1. Facts

The Executive Director of the Governor's Justice Commission (GJC) requests an advisory opinion as to various matters concerning the GJC. The Governor's Justice Commission administers several federal grants, including those under the Violence Against Women Act (VAWA) which is part of the federal Crime Bill of 1994. The State of Rhode Island administers the Services, Training, Officers, Prosecutors (STOP) Formula grant program, Grants to Encourage Arrest Policy (GTEAP) discretionary grant program, and the Rural Domestic Violence and Child Victimization Enforcement grant program.

The STOP formula grant program generates awards to states based on size and population. The legislation mandates that 25% of the money awarded be allocated to victim services; 25% to prosecution and 25% to law enforcement. The remaining 25% is discretionary. Federal law mandates that states include private, non-profit victim service agency representatives as part of their planning process. The law also encourages states to fund statewide victim service agencies. Currently, only two agencies in Rhode Island meet this criteria, The Coalition Against Domestic Violence and the Sexual Assault & Trauma Resource Center.

The GTEAP program involves wholly discretionary grants. States receive grants based upon a plan that the GJC submits to Washington as well as the state's performance record in addressing the domestic violence/sexual assault issue. While the program does not have stringent requirements for the GJC's allocation of funds, there are goals and objectives that must be met within a state's plan.

The Rural Domestic Violence and Child Victimization Enforcement grant is received directly by the Coalition, which submits its own implementation plan. The GJC serves only as the state link.

After receiving the referenced federal grant money, the GJC's VAWA Planning Committee takes part in developing the state implementation plan and makes recommendations for the allocation of funds. The Planning Committee consists of representatives from victim services, prosecution, law enforcement and the courts with the majority of the members representing private non-profit victim service entities that receive grant money. The Steering Commission reviews and approves the Planning Committee funding recommendations. The GJC grant administrator (who is a staff member) then makes funding recommendations to the GJC Policy Board. The Policy Board makes the ultimate decision as to the funding. Once the funding recommendation plans are approved, the subgrant recipients are notified and take part in preparing detailed state implementation plans which are submitted to the federal government.

Given this structure, the petitioner asks several questions.

(1) If the Planning Committee were restructured, a formal recusal policy were implemented, and a formal voting procedure were enacted, would it be possible for the Planning Committee to serve as an advisory body that submits funding recommendations to the Policy Board of the GJC

(2) Should the STOP grant and the GTEAP program be required to go through a formal Request for Proposal (RFP) process before allocating funds?

(3) The Criminal Justice Steering Committee is an executive committee (8 members) of the GJC Policy Board. The Steering Committee approves funding recommendation plans. If a formal RFP process is required, would it be appropriate to have the Steering Committee review the proposals, determine the merit of the proposals and submit funding recommendations to the Policy Board of the GJC?

The petitioner notes that the restructured Planning Committee would consist of two members representing victim services, two members representing law enforcement, two members representing prosecution, one member representing the courts, one member representing corrections, and one member representing probation. Additionally, when specific funding recommendations are discussed that could impact the entity and/or representative directly, the various members would recuse from participation as members of the Committee.

2. Analysis

The Code of Ethics provides that the public officials and employees 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 public official has reason to believe or expect that he/she or any family member or business associate, or any business by which he/she is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his/her official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a). The Code of Ethics also provides that public officials shall not use his/her office for pecuniary gain for him/herself, family, business associates, employer, or a business that he/she represents. R.I. Gen. Laws § 36-14-5(d).

The petitioner first asks whether the Planning Committee could submit funding recommendations to the Policy Board if the Planning Committee were restructured and adopted a formal recusal policy. Neither action is required by, or even falls within the purview of, the Code of Ethics. However, the manner in which such processes are conducted could implicate the provisions of the Code of Ethics. If the recusal policy requires members of the Planning Committee to recuse from participation when specific funding recommendations are discussed that could impact an entity with which he/she is affiliated either as an employee or as a member of its Board of Directors or him/herself directly, the policy clearly would be consistent with the Rhode Island Code of Ethics.

Here, the Planning Committee is made up of representatives from various entities, private non-profit organizations, and public agencies as well. The representatives from the victim services area are either employed by or serve on the Board of Directors of the organization. The Commission has previously concluded that members of boards of directors of non-profit or for-profit organizations are "business associates" as defined by the Code at R.I. Gen. Laws § 36-14-2(3), thus requiring recusal. The Commission also has concluded that parent-subsidiary and sister organizations are business associates. See A.O. 98-10, A.O. 96-46. As to those members representing or otherwise affiliated with private entities, recusal is required if and when a matter affecting the organization comes before him or her as a member of the GJC VAWA Planning Committee. 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. This would include discussion and deliberation about the allocation of discretionary funds if their organization would be financially affected by such, as well as matters that could affect their own organizations directly either as a recipient or because the member's organization was a direct competitor of the organization having a matter before the Committee.

Additionally, while the VAWA Planning Committee is not the ultimate decisionmaker as to subgrant awards, it is an essential step in the process that narrows and directs where funding will be allocated. By the Committee's very nature, the members are taking action that they have a reason to believe or expect would result in a financial gain to themselves, business associates, employers, or family members. Presumably, the reason for the Committee’s existence is to play a substantive role in the process, underscored by its ability to make recommendations about funding plans. As such, the activities of the VAWA Planning Committee members constitute official conduct for purposes of the Code of Ethics.

As to those members whose only affiliation affected by GJC operations is public in nature, the Commission looks at several factors. First, simply holding multiple appointive positions is not banned by the Code of Ethics. Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to simultaneous service as members of the VAWA Planning Committee. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out his/her official duties in the public interest as a member of the various public agencies. The next question is whether the person is employed by the other public agency or whether he/she is an appointed member who is paid. Under Commission Regulation 2002(3) "employees" includes those persons receiving a salary or stipend. Since the Code prohibits persons from participating in matters affecting his/her employer, the prohibition would extend to those matters. A substantial conflict of interest is not apparent by a VAWA Planning Committee member holding these positions which may only involve the other public entity, i.e., discussing a pre-existing program that is not currently up for funding or law enforcement in general. However, where the funding recommendation discussion focuses on individual subgrantees, those members who are employed in the public sector must recuse where their employer is under consideration for a recommendation to receive a grant. See A.O. 99-12 (opining that the Chief of Permitting for the Office of Water Resources at the Department of Environmental Management (DEM) may accept an appointment as Chairperson of the Cranston Planning Commission but must recuse himself from any matters that affected the DEM or his employment with DEM); A.O. 98-87 (advising a North Kingstown Councilor who also served as a member of the Quonset Davisville Management Corporation that he could accept part-time employment with the Rhode Island Economic Development Corporation provided that he recuses himself when matters involving or affecting the EDC or QDMC come before the Town Council).; A.O. 98-75 (advising a member of the Highway Commission, the Finance Board and the Economic Development Commission for the Town of Hopkinton that the Code of Ethics did not prohibit him from serving as a member of the Chariho Regional School Committee absent a direct financial nexus between his actions as a public official wearing one hat and his position as a public official wearing a second hat).

The petitioner also asks whether the law requires that particular grant programs go through a formal Request for Proposal (RFP) process and whether the Steering Committee may review the proposals. Those questions fall outside the purview of the Code of Ethics. However, the manner in which such processes are conducted could implicate the provisions of the Code of Ethics. For instance, if the GJC were to use the RFP process, members of the VAWA Planning Committee nor the Steering Committee could participate in the development of the RFP if he /she or his/her employer/organization would be responding to the request. Additionally, those members may not participate in the review of the proposals. See R.I. Gen. Laws § 36-14-5(h).

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-5(h)
36-14-7(a)

Related Advisory Opinions:

99-12
99-8
98-87
98-75
98-10
96-46
95-66

Keywords:

Competitor(s)
Advisory Body
Non-profit Boards