ETHICS TODAY
A Newsletter of the Rhode
Island Ethics Commission
Volume IV, Number 2 --- Spring/Summer 1999
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ETHICS TODAYA Newsletter of the Rhode
Island Ethics Commission
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IN THIS ISSUE:
Council on Governmental Ethics Laws Annual Conference
Advisory Opinion Roundup: The New Regulations
Litigation, Legislation & Regulation Updates
The Council on Governmental Ethics Laws convenes its annual conference in Providence in December 1999. The conference is a centerpiece of the Commission’s education program and offers an opportunity for public officials, attorneys who work for and with public entities, and citizens interested in governmental reform to catch a glimpse of what is happening nationally and internationally in areas such as campaign finance, ethics in government, lobbying regulation, freedom of information act, public financing of political campaigns and combating public corruption.
Presentations on these topics will be made by experts at the federal, state and municipal levels, and by representatives from Canada, Great Britain, Australia, New Zealand and several African jurisdictions. White House Counsel Charles Ruff, who led the defense of President Clinton at the impeachment hearings, will discuss the investigation and prosecution of senior level government officials, and whether there is a role for independent counsels in the process. Joining him will be Professor Katy Harriger of Wake Forest University, an authority on the historic roles of Congress, the Justice Department and independent counsels in addressing federal corruption, as well as a representative of the Office of Independent Counsel. Other featured speakers will be former Massachusetts Governor and Democratic Party presidential nominee Michael Dukakis, who signed into law one of the first state conflict of interest laws, creating the State Ethics Commission, and Doctor K. Afari-Gyan, the Executive Secretary of the Association of African Election Authorities, a multi-national organization charged with protecting the integrity of elections in emerging democracies on the African continent.
Other highlights will include a panel discussion led by Larry Noble, General Counsel of the Federal Election Commission, focusing on the critical campaign finance issues affecting independent expenditures and third party advocacy. Issues involving the public financing of campaigns will be featured in the context of recent experiences in Rhode Island and other New England states that have enacted public financing laws, as well as the role public financing played in electing a third party candidate as the Governor of Minnesota. Prosecution and enforcement programs for combating corruption will be outlined as will a unique program developed by the University of Rhode Island’s Center for Ethics and Public Service to educate and inform senior state officials about the value of ethics in government, all in the context of what means are available to form and strengthen healthy political cultures.
Public access to government information (FOIA) also will take center stage with panel discussions focusing on the use and protection of information in the health care industry and the challenge of keeping government open and accessible in the age of the internet and other raging technologies. Recent Rhode Island experience, particularly efforts by the Secretary of State to bring sunshine to General Assembly proceedings and the “Open or Shut” study of public information access done by Brown University’s Taubman Center will be the backdrop for presentations on the public value of open and transparent government.
If you would like to receive registration materials, please call the Commission with your name and address.
Following the adoption of new gift rules last summer, the Commission has issued advisory opinions to legislators, senior executive officials and others. Advisory opinions have explained the reasoning behind who is an “interested person” that would trigger the prohibitions in accepting items of value. For instance, the Commission advised members of the General Assembly that although they may attend a legislative orientation program being presented by Brown University, they may not accept a free lunch from the University in conjunction with that program. Brown University is an “interested person” under the Code of Ethics since it receives funding from the State and employs lobbyists to represent its interests before the General Assembly. (A.O. 98-121) The Ethics Commission advised the state Transportation Director that he may attend meetings of the Construction Industries of Rhode Island, a lobbying group, and accept food and beverage where he is speaking or answering questions as part of a program. The Commission also ruled that the Director and DOT employees may attend events sponsored by civic organizations and accept breakfasts, lunches and dinners from those organizations provided they are not “interested persons.” The fact that some of an organization’s members may be affected financially by a DOT action does not mean that the organization necessarily is an interested person under Regulation 5009. Rather, the Commission will look to the specific nature of the organization and its functions and/or the collective profile of its members. Completing its analysis, the Commission concluded that the Rotary Club and Knights of Columbus clearly would not be “interested persons,” but that a particular Chamber of Commerce would constitute an “interested person.” (A.O. 98-114)
The Commission also answered questions from municipal officials. First, the Commission concluded that, in general, employees and officials personally may receive special rates on cellular phone service provided that the officials and employees who participated in the decision to award the contract to a vendor offering those discounts or who participate in monitoring the service provided to the municipality by that vendor may not receive the discounted service. (A.O. 99-1) The Commission reached a similar conclusion allowing members of a town council to attend a dinner sponsored by the local teacher’s union PAC. In that matter the town council neither negotiated with nor voted on specific line items related to the teachers union or its members. The Commission noted that if the town council or a public official had the ability to affect line items related to the union and its membership, they would be “interested persons” under the gift regulation and the public official could not accept anything of value from them. (A.O. 99-25)
Associations made up of public officials and employees are also offered gifts, or other items of economic value and have sought advice from the Commission. Factors the Commission has considered include whether the public official received the gift from an “interested person,” defined as someone over whom the official had decision making authority, and whether the gift was for the personal benefit of the official or instead benefited the association. In Advisory Opinion 99-14, the Commission advised that the Rhode Island Fire Chiefs’ Association could accept a $1,000 donation from the Volunteer Firefighters’ Insurance Service to benefit the Fire Chiefs’ Legislature Forum since neither the Association nor the individual Fire Chiefs are authorized to make decisions regarding insurance rates and carriers. Similarly, the Rhode Island Building Officials Association could accept a donation of space at the Home Show from the Builders Association since the donation was being provided to the Building Officials Association, rather than to individual members and not for any personal use of its members. Rather the benefit of the donation would be received by the builders, homeowners, and others attending the event. (A.O. 99-17)
Don’t forget to include gifts over $100 on your financial disclosure form.
Several local officials have requested advice from the Commission concerning Commission Regulation 5011, Transactions with Subordinates. A mayoral candidate who was also a School Committee member was advised that he could only solicit campaign contributions from school department employees if he did not participate in matters affecting school department employees during the remainder of his tenure. (A.O. 98-144) A municipal official asked whether she and other Department heads could continue to exchange holiday gifts with the Town Manager. The Commission ruled that the practice could continue so long as it is voluntary and not solicited by the Town Administrator. The Commission also clarified the scope of the gift rule in that it does not apply to internal departmental matters such as this. (A.O. 98-170) Similarly, hosting an annual dinner where people paid to attend did not run afoul of the new provisions provided the dinner host, a public official, did not solicit the purchase of tickets by anyone working under his supervision. (A.O. 99-20)
If you are a public official or employee and have questions about whether you may accept something of value, you may ask for an advisory opinion from the Commission. You can also search the Ethics Commission Web Page for related advisory opinions.
The Rhode Island Supreme Court recently affirmed the Commission’s decision in a matter relating to a former legislator working as a lobbyist within one year after he left his position with the State Senate. The provision at issue bars public officials and employees from appearing before their own agency for one year after they leave that position. Here, the former Senator accepted employment with the RI Bottlers Association. The Supreme Court found that the respondent’s conduct - initiating telephone conferences with and preparing letters of information to state senators opposing a bill, attending senate sessions, wearing his lobbyist badge and arranging dinners between state senators and representatives of the soft-drink industry for the purpose of providing information in opposition to the bill — constituted “appearing” for purposes of the Code of Ethics. Although the respondent never appeared formally before a senate committee, the Supreme Court found that the contact of senators individually and as members of small groups and performing other professional services in his capacity as a paid, registered lobbyist constituted representation of his client’s interests. The Court stated that such behind the scenes conduct still allowed a former public official to unfairly exercise influence over his/her former colleagues. The former Ethics Commission predecessor, Conflict of Interest Commission, had fined the respondent $5,000. DiLuglio v. Rhode Island Ethics Commission No. 97-330 (R.I. March 25, 1999).
The Commission is considering several new regulations. On May 18, 1999 the Commission held a public hearing to elicit public comment about two procedural regulations relating to the conduct of investigations. The current draft regulations under consideration would specify procedures for the handling of information it receives regarding allegations of violations of the Code of Ethics where a complaint has not been filed. The other proposed regulation concerns time for investigations. Both proposals are pursuant its its authority contained in Article III, Section 8 of the Rhode Island Constitution and R.I. Gen. Laws § 36-14-12(a). Another public hearing will be held before the Commission votes on the regulations. The Ethics Commission is also considering possible regulations in the area of lobbyists. Draft proposals are being prepared and public hearings will be scheduled in the next few months The Ethics Commission, as always, encourages public comment.
Common Cause of Rhode Island proposed legislation relating to the State’s financial disclosure requirements for public officials and it remains under consideration by the General Assembly. Senate Bill 99-0950a unanimously passed the Senate during the first week of June and is waiting for action by the House of Representatives. The bill would change and reduce the number of people required to file yearly financial disclosure statements. Those required to file would include all elected officials, but only those appointed officials with decision-making authority to either spend $10,000 during a year for the state officials or $5,000 for municipal officials, or the ability to affect public or private property rights. Additionally, state and municipal appointed officials and employees who are “major decision-makers” such as department or division heads would now be required to file. It is expected that this will decrease the total number of people required to file by eliminating appointed officials with little or no authority to affect public funds or private financial interests. Currently approximately 6,000 appointed and elected municipal and state officials file statements annually. Appointed persons who are appointed by the highest governing authority or official of the state or municipality or serve for a term of office provided for by statute, charter, ordinance, or constitution have been required to file disclosure statements per the statute passed by the General Assembly, first in 1977 when the Conflict of Interest Commission was created. See R.I. Gen. Laws § 36-14-2, 4, 16.
Q: As a public school teacher, ST instructs students who are learning to read. ST operates a private business that helps children master reading skills. As part of his business, he developed a “Learn to Read” program, which uses his own materials. ST has used the program in his public employment and the School Department now wants to adopt it throughout the district. May ST sell his program materials to the Department?
A: No, unless it were selected and sold through a competitive bidding process. By statute, no public official or employee, or his or her family member or business associate, may enter into a contract with a municipal agency unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. See R.I. Gen. Laws § 36-14-5(h). Section 5(h)’s provisions are broad and apply to doing business with any municipality or the state, not only the municipality by which one is employed. The intent of the prohibition is to prevent public officials and employees from gaining an unfair advantage over competitors.
The Commission has found that public officials who participate in the bid development process for a public entity place themselves and their business associates in a privileged position with respect to other bidders, contravening the “open and public process”.
ST may market his program to other schools within the state if the contract for services or supplies is awarded through an open and public process. He also may privately contract with or solicit individual teachers from any municipality to provide resource training or materials since such contracts would not fall within the scope of Section 5(h). However, ST may not use public resources or time for his business nor actively use his public employment to solicit private business.
The Commission has had several changes to its members and staff since the last issue of ETHICS TODAY. James V. Murray of Warwick has been appointed by Governor Almond to the Ethics Commission following a nomination by the House Majority Leader. Mr. Murray has served as Managing Attorney for Amica Mutual Insurance Co. for the last five years. He earned degrees at the Harvard University, B.A. in Government, Cum laude, and Suffolk Law School. His term expires in 2003. Staff members Colleen Brown and Raymond Bouchard recently resigned after four and seven years of service, respectively. Ms. Brown was a Commission Attorney and Mr. Bouchard served as Commission Investigator. The Ethics Commission recently published the 1998 Advisory Opinion Digest and its FY98 Annual Report. If you would like to receive a copy, please contact the Commission.
If you have not already checked out the Commission’s updated Web Page --Take Another Look. Advisory opinions from 1995 to present as well as certain complaint matters are fully searchable. The complete Code of Ethics and procedural regulations, forms, publications are also available. The following is a list of some of the other material you will find on the Ethics Commission Web Page:
General Commission Advisories
Financial Disclosure Forms
Recusal Forms
FAQ about Financial Disclosure
Ethics Today Newsletters
FY98 Annual Report
Advisory Opinion Procedures
Investigation Procedures
Commission and Staff
Meeting Schedule
E-Mail
http://www.state.ri.us/ethics