Advisory Opinion No. 99-138

Re: Pamela Zellner

QUESTION PRESENTED

The Executive Director of the Commission on the Deaf and Hard of Hearing (CDHH) requests an advisory opinion on behalf of the petitioner, a CDHH staff member, a state employee position, as to whether her recent appointment to the position of Treasurer of the Rhode Island Association of the Deaf (RIAD) constitutes an inherent conflict of interest under the Code of Ethics.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Commission on the Deaf and Hard of Hearing (CDHH) staff member, a state employee position, may serve as Treasurer of the Rhode Island Association of the Deaf (RIAD) provided that, in her employment with the CDHH, she does not participate in any matters that may financially impact the RIAD, her business associate under the Code of Ethics. Further, Section 5(e) of the Code of Ethics prohibits her from representing the interests of the RIAD before the CDHH for a period of one-year following her official severance of employment with the CDHH.

Under the Code of Ethics, the petitioner may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. A substantial conflict of interest occurs if she has reason to believe or expect that she or any family member or business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). She is prohibited from using her public position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself, 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 herself 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).

Here, the Commission concludes that the petitioner’s employment with the CDHH and her simultaneous service as Treasurer of the RIAD does not, in and of itself, present a conflict of interest under the Code. However, as Treasurer of the RIAD, 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, in the event that matters specifically relating to the RIAD come before her in her employment with the CDHH, she must recuse herself from any participation and/or voting in connection with said matters. Notice of recusal should be filed with both the Ethics Commission and the Commission on the Deaf and Heard of Hearing in accordance with R.I. Gen. Laws § 36-14-6. Finally, pursuant to R.I. Gen. Laws § 36-14-5(e)’s revolving door prohibitions, the petitioner may not appear before the CDHH on behalf of the RIAD for a period of one-year following her official severance of employment with the CDHH.

Code Citations:

36-14-2(3)
36-14-5(a)

Code Citations Continued:

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

Related Advisory Opinions:

99-118
99-81
99-57
99-56
99-50
99-35
99-33
99-24
98-139
98-108
98-76
98-44
98-10
97-13
96-75
96-54
95-59

Keywords:

Business associate
Memberships
Non-profit boards
Revolving door