Advisory Opinion No. 99-81

Re: Joseph R. Miech

QUESTION PRESENTED

The petitioner, a Rhode Island State Police Sergeant, a state employee position, requests an advisory opinion as to whether, in his individual capacity, he may serve on the Board of Directors of Mothers Against Drunk Driving in Rhode Island (MADD RI), a private non-profit organization, given that the State Police may work in conjunction with MADD RI on educational, fundraising, and legislative concerns.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Rhode Island State Police Sergeant, a state employee position, may serve on the Board of Directors of Mothers Against Drunk Driving in Rhode Island (MADD RI) in his individual capacity, provided that he does not exercise discretionary authority and/or influence over whether the State Police works in conjunction with MADD RI on educational, fundraising, and legislative concerns. Further, he may not appear before the State Police on behalf of MADD RI given that he serves on its Board of Directors and, therefore, is its business associate under the Code of Ethics.

Under the Code of Ethics, the petitioner may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. A substantial conflict of interest occurs if he has reason to believe or expect that he or any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). He is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate or a family member. See R.I. Gen. Laws § 36-14-5(d). Section 5(f) of the Code requires the petitioner to recuse himself from voting or otherwise participating in the consideration and/or disposition of a matter involving a business associate. See R.I. Gen. Laws § 36-14-5(f). Under R.I. Gen. Laws § 36-14-2(3), a “business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective”.

Previously, the Commission has concluded that public officials are “business associates” of entities for which they serve either as members of the Board of Directors or in other leadership positions that permit them to affect the financial objectives of the organization. If an official has such a leadership position, the Commission has required that the official recuse him or herself if the interests of the organization would be affected by an action to be taken by his or her public agency. See A.O. 98-76 (concluding that a Narragansett Town Councilor should not participate in appropriating funding for the Chamber of Commerce since she served on its Board of Directors); A.O. 98-44 (opining that a Commissioner of Fire Safety Code Board of Appeal and Review should not participate in appeals involving property owned by the International Association of Firefighters (Local 799) and the Providence Firefighters Realty Corporation since the petitioner, who held a position with both entities that would permit him to affect the financial objectives of the organization, had a business association relationship with the organizations that triggered the prohibitions set forth in R.I. Gen. Laws § 36-14-5(a)); A.O. 96-75 (advising three members of the General Assembly who also served as members of the Board of Directors of local hospitals to recuse themselves from participation regarding hospital issues since they had a business association with the local hospitals); and A.O. 95-59 (advising a member of the Smithfield School Committee to recuse himself from a vote concerning a community organization if the official’s association with the organization allowed him to affect the financial objectives of the organization).

The Commission concludes that the petitioner’s simultaneous service as a State Police Sergeant and a member of MADD RI’s Board of Directors does not, in and of itself, present a conflict of interest under the Code. However, as a member of MADD RI’s Board of Directors, the petitioner has a business association with that organization that triggers the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a), 5(d) and 5(f). Accordingly, he may not exercise control and/or influence over whether the State Police works in conjunction with MADD RI on educational, fundraising, and legislative concerns. For example, while the Code would not preclude his participation where the decision to work in conjunction with MADD RI is made by his superior(s), the petitioner himself may not exercise decision-making authority over and/or provide substantive input for decisions regarding his business associate. MADD RI. In the event that the petitioner is called upon to exercise discretion with regard to MADD RI, he must recuse from participation in the matter. Notice of recusal should be filed with both the Ethics Commission and the State Police in accordance with R.I. Gen. Laws § 36-14-6.

Further, pursuant to R.I. Gen. Laws § 36-14-5(e)’s revolving door prohibitions, and assuming the petitioner continues to serve on the Board of Directors of MADD RI, he may not appear before the State Police on behalf of MADD RI for a period of one year following his official severance from employment with the State Police. Finally, this opinion does not address potential Section 5(d) concerns regarding use of position that may be implicated by the petitioner’s private fundraising activities. In the event that he wishes to fundraise for MADD RI, he should seek further guidance from the Commission.

Code Citations:

36-14-2(3)
36-14-5(a)
36-14-5(d)
36-14-5(e)
36-14-5(f)
36-14-6
36-14-7(a)

Related Advisory Opinions:

99-57
99-56
99-50
99-35
99-33
99-24
98-108
98-76
98-44
98-65
98-16
98-10
96-75
95-59

Keywords:

Business Associate
Discretionary Authority
Membership
Non-profit Boards