Advisory Opinion No. 99-44

Re: Richard H. Godfrey, Jr.

QUESTION PRESENTED

The petitioner, the Executive Director of the Rhode Island Housing and Mortgage Finance Corporation (RIHMFC), requests an advisory opinion as to whether members of RIHMFC’s Board of Commissioners and staff, state appointed and employee positions, may solicit contributions for non-profit entities involved with RIHMFC, given that the targets of such solicitations may be entities over which the Board members or staff exercise supervisory responsibility in their public positions.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit members of the Rhode Island Housing and Mortgage Finance Corporation’s (RIHMFC) Board of Commissioners and staff, state appointed and employee positions, from soliciting contributions for non-profit entities involved with RIHMFC, provided that the Board members or staff seeking contributions do not exercise supervisory responsibility or control over the solicited entities.

The petitioner advises that RIHMFC Board members and staff may be asked to assist non-profit entities involved with RIHMFC in their fund-raising efforts. He indicates that such efforts reduce the amount of funding RIHMFC must provide to these entities and furthers their joint objective of providing low and moderate income housing and related supportive services. All contributions will benefit the non-profit entities directly, with no benefit accruing to individual RIHMFC Board members or staff. He represents that some of the entities targeted for solicitation have financial dealings with RIHMFC for which the Board members or staff making the solicitations may exercise supervisory responsibility.

Under the Code of Ethics, a public official or employee may not have any interest which is in substantial conflict with the proper discharge of his or her duties or employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). Commission Regulation 5011 prohibits individuals subject to the Code from soliciting contributions, either directly or through a surrogate, from a subordinate over whom he or she exercises supervisory responsibilities in the course of his or her official duties. See Commission Regulation 36-14-5011. However, that prohibition does not apply where the contribution is initiated by the subordinate, part of a regular commercial business or occupation, or a charitable or fundraising event under the general sponsorship of a municipality or state.

Here, the fund-raising efforts at issue generally are consistent with RIHMFC’s public purpose. Also, the efforts directly benefit non-profit entities associated with RIHMFC, rather than with some individual member or employee of RIHMFC. However, since they are not the subject of “general sponsorship by a state or municipal agency through official action by a governing body or the highest official of state or municipal government”, the exception set forth in Regulation 5011 is inapplicable. Such sponsorship could be accomplished by action of the Governor. Accordingly, individual members of RIHMFC may not solicit contributions from entities that do business with the agency except in situations where the Board members or staff who solicit contributions do not exercise supervisory responsibility or control over the entity(ies) being solicited, and where they are not acting on behalf of someone who exercises such responsibility. In the event that an individual who made such a solicitation is required to take supervisory action over a solicited entity, whether or not the entity made a contribution, the individual should exercise the Code’s recusal provision. Notice of recusal should be filed with the Ethics Commission and RIHMFC in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-5(a)
36-14-6
36-14-5011

Related Advisory Opinions:

99-20
98-163
98-161
98-155
98-144
98-140
98-125

Keywords:

Solicitation
Transactions with Subordinates