Advisory Opinion No. 99-106

Re: Edward F. Donnelly, RN, MPH

QUESTION PRESENTED

The petitioner, a Department of Health employee, a state employee position, who serves as a member of the Mosquito Abatement Board by designation of the Director of the Department of Health, requests an advisory opinion as to (1) whether he is required to file a financial disclosure statement given that he was designated by the Director of the Department of Health to serve in her ex officio position on the Board; and (2) whether he has potential conflicts of interest that would require him to resign his position on the Board.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Department of Health employee, a state employee position, is not required to file a financial disclosure statement since he is a designee of the Director of the Department of Health to serve on the Mosquito Abatement Board. Additionally, the Code of Ethics does not prohibit the petitioner from serving as a Board member. However, if a particular matter comes before the Board that would particularly affect him, a family member, or a business associate, he should recuse from the matter in accordance with Section 6 of the Code of Ethics.

Under the Code of Ethics, the petitioner may not participate or vote in any matters in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if he has reason to believe or expect that he, a business associate, or a business by which he is employed or represents will derive a direct monetary gain by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a). Also, all state and municipal elected officials and state and municipal appointed officials who are appointed by the highest governing authority or official of the state or municipality or whom serve for a term of office set by statute, charter, ordinance, or constitution are required to file annual financial disclosure statements. See R.I. Gen. Laws §§ 36-14-4, 16.

The petitioner represents that the Director of the Department of Health or designee is an ex officio member of the Mosquito Abatement Board by virtue of statute. See R.I. Gen. Laws § 23-7-4. According to the petitioner, the Director has named him as her designee to serve on that board.

The Commission previously opined that a designee of the Attorney General, an ex officio member of the Medical Examiners Commission, was not required to file a financial disclosure statement. The Commission concluded that, notwithstanding the fact that a designee may carry out the same duties and responsibilities as the ex officio member, under the existing financial disclosure requirements as set out by statute, a designee is not an elected or appointed official within the meaning of R.I. Gen Laws § 36-14-4(a) and (b). See A.O. 96-36 and A.O. 98-77. This matter is analogous to the situations found in those earlier opinions. Therefore, the petitioner is not required to file a financial disclosure statement.

The Commission further concludes that the Code of Ethics does not prohibit the petitioner from serving as a member of the Mosquito Abatement Board. However, he may not participate in matters that would be a substantial conflict of interest, i.e. approving a grant that will financially impact himself, a family member, or business associate. We suggest that the petitioner return to the Commission for guidance if he is faced with a particular set of circumstances that might give rise to a conflict of interest. Otherwise, in such a circumstance he should recuse from participation and file a recusal form with the Board and with the Ethics Commission in accordance with Section 6 of the Code of Ethics.

Code Citations:

36-14-4
36-14-5(a)
36-14-7(a)
36-14-16

Related Advisory Opinions:

98-77
96-36

Keywords:

Financial Disclosure