Advisory Opinion No. 99-58

Re: John J. Lombardi

QUESTION PRESENTED

The petitioner, the Providence City Council President, a municipal elected position, requests an advisory opinion as to whether he may authorize or deny the spending of public money and/or use of public resources for bulk mailing by city councilors.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Providence City Council President, a municipal elected position, may authorize the spending of public money and/or the use of public resources for bulk mailing by city councilors provided that the mailings are not used for private purposes, including private political purposes.

Under the Code of Ethics, specifically R.I. Gen. Laws § 36-14-5(d), a public official is prohibited from using his/her public position or confidential information received through his/her position to obtain financial gain, other than that provided by law, for him/herself, a business associate, an employer, or any business in which he/she represents. The use of public resources, albeit through use of city personnel, postage meter, paper, or actual funds, for private purposes implicates this provision of the Code of Ethics if a nexus exists between the use of the private resources and a cognizable financial gain to the public official of a related party. However, whether and to what extent a particular bulk mailing is for private rather than public purposes necessarily is a fact specific determination. For example, an informational mailing outside an election season made to constituents and paid for with public funds that conveys legitimate public policy materials differs significantly from an election season mailing that promotes the exploits or achievements of an elected official who is seeking reelection. [Note: Other states have adopted rules that either carry a time restriction for bulk mailings or a blanket ban on the use of public resources for political purposes.]

The Commission has concluded on numerous occasions, in the advisory opinion and in the complaint context, that public officials may not use their public office for private gain. Typically, those situations have involved a person participating or voting in a matter that would benefit him/herself, a business, a family member, or a business associate. However the Commission has issued several advisory opinions on the use of public resources. In two related advisory opinions, the Commission advised state personnel that they could conduct particular activity on state premises under certain guidelines. See A.O. 98-4 (concluding that state employee artwork could be displayed on state property, provided that the displays simply state the artists’ names and do not include prices or signs indicating that the art work is for sale) and A.O. 96-104 (advising that a state employee could conduct aerobic class on state property given that it is unrelated to her current employment, she did not have any decision making ability with regard to whether or how to institute an exercise program, nor is she being paid by the state).

Two other advisory opinions concern the use of public employees or time to conduct private activities. In Advisory Opinion 98-140 the Commission concluded, inter alia, that the Town of Coventry could sponsor a golf tournament and use Coventry resources and personnel in preparation for the event. The Commission also found that if a private individual or entity, other than a scholarship recipient, were to benefit financially from the use of Town resources or personnel that it would be a violation of the law. Similarly, the Commission concluded that the Pawtucket Zoning Director could partake in the "Fournier Jeep Eagle Most Wanted Lock Up" in his capacity as a private citizen, and on his own personal time, but was prohibited from conducting personal business on City time, and from soliciting pledges or donations from local businesses or persons with whom he may come into contact in the course of his official duties. See A.O. 95-73.

In this matter, the petitioner lists hypothetical examples of the subject for the bulk mailings, from dedications to public safety issues to licensing matters. Each of these items would appear to have a public purpose in informing a councilor's constituents on matters that could affect them and that would relate to the councilor's public responsibilities. However, this is only one consideration. The subject of the mailing, the exact content of the mailing and the timing of the mailing are all factors that would be considered in determining whether a public official is using his/her office for private financial gain. For instance, if the mailing were simply a list of accomplishments and mailed to constituents through the use of public resources close to the election, the mailing likely would fall into the area of prohibited conduct. The fact that a councilor may only inform some constituents or send a mailing regarding a matter on which residents have already been notified in and of itself does not transform a mailing with the use of public resources into prohibited conduct. However, if it also contained messages encouraging residents to vote for him/her and/or that were mailed close to the election, such conduct would be viewed differently. We advise the petitioner that if and when mailings are contemplated with content or timing different from those suggested in the request, he (or the public official making or benefiting from the mailing) should seek additional guidance from the Ethics Commission.

While we do not address each of the petitioner's questions, this response serves as a guideline for the propriety of using public resources for bulk mailings. Other questions, such as the impact on the staff and whether the adoption of a policy in this area will infringe on the rights of elected officials or taxpayers, fall outside the Commission's jurisdiction and may readily fall within another agency's jurisdiction or is one of departmental policy.

Code Citations:

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

Related Advisory Opinions:

95-73
96-104
97-100
98-4
98-140
98-163

Keywords:

Budgets
Political Activity