Advisory Opinion No. 99-139

Re: Jeffrey J. Newell

QUESTION PRESENTED

The petitioner, the Chair of the Board of Pharmacy, a state appointed position, requests an advisory opinion as to whether 1) he may continue his membership in the State Pharmacy Association and participate in its efforts to establish an Institute for Pharmacy Care at the University of Rhode Island (URI) College of Pharmacy; and 2) he may participate in fund raising on behalf of the Institute, given that such fund raising may be conducted among individual licensees of the Department of Health.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Chair of the Board of Pharmacy, a state appointed position, may continue his membership in the State Pharmacy Association and participate in its efforts to establish an Institute for Pharmacy Care at the University of Rhode Island (URI) College of Pharmacy. However, we conclude that he may not represent the interests of the Association and/or the Institute before the Board of Pharmacy for a period of one-year following the expiration of his term of office on the Board. See R.I. Gen. Laws § 36-14-5(e). Further, Commission Regulation 5011 prohibits the petitioner from soliciting contributions on behalf of the Association and/or the Institute from any individual or agency over whom he exercises supervisory responsibility as a member of the Board of Pharmacy.

The petitioner advises that he is a member of the State Pharmacy Association, a private organization, and has participated in its planning process for the development of the pharmacy profession in Rhode Island. He represents that he previously served two terms on the Association’s Board of Directors, but that he no longer holds a leadership position with that organization. He indicates that the Association wishes to implement various strategies, including lobbying, regulatory changes, training for pharmacists and consumer education, by establishing an Institute for Pharmacy Care at the University of Rhode Island (URI) College of Pharmacy. He represents that the Association may participate in fund raising for the Institute, and may target individual licensees of the Department of Health (e.g. pharmacists, hospitals), pharmacy manufacturers and insurers, for solicitation.

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).

Section 5(e) of the Code provides that, for a period of one year after a person has officially terminated his or her position with any state or municipal agency, that person shall not appear before the state or municipal agency on which the person had served. R.I. Gen. Laws §§ 36-14-5(e)(1) and 5(e)(4). 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 subordinate initiates the solicitation for the contribution, is part of a regular commercial business or occupation, or is a charitable or fund raising event under the general sponsorship of a municipality or state.

The Commission concludes that the petitioner’s simultaneous service on the Board of Pharmacy and membership in the State Pharmacy Association does not, in and of itself, present a conflict of interest under the Code. However, pursuant to R.I. Gen. Laws § 36-14-5(e)’s revolving door prohibitions, the petitioner may not appear before the Board of Pharmacy on behalf of the Association and/or its interests for a period of one-year following his official severance from office on the Board.

The Commission further concludes that the petitioner may participate in the Association’s efforts to establish a Pharmacy Care Institute at URI. However, the petitioner indicates that the Association’s fund raising efforts on behalf of the Institute may target licensees of the Department of Health, such as pharmacists and hospitals, for solicitation. Given that the Board of Pharmacy exercises supervisory responsibility and/or control over some of the targets of the Association’s fund raising efforts, the petitioner may not participate in soliciting donations from such individuals/entities. See A.O. 99-44 (finding that 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 the petitioner is required to take supervisory action over a solicited individual/entity, whether or not the entity made a contribution, the petitioner should exercise the Code’s recusal provision in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

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

Related Advisory Opinions:

99-129
99-116
99-44
99-20
98-155
98-125
98-89
98-72
96-54

Keywords:

Memberships
Non-profit boards
Solicitation
Transactions with subordinates