Advisory Opinion No. 2020-16 Rhode Island Ethics Commission Advisory Opinion No. 2020-16 Approved: March 3, 2020 Re: Kenneth Amoriggi QUESTION PRESENTED : The Petitioner, a member of the North Providence Town Council, a municipal elected position, who in his private capacity is the President of the Marieville Neighborhood Partnership, a private non-profit organization in the Town of North Providence, requests an advisory opinion regarding: 1) whether the Code of Ethics prohibits him from simultaneous service in both positions and what restrictions, if any, the Code of Ethics places upon him in carrying out his Town Council duties; and 2) whether his name may appear on any fundraising materials, newsletters or other correspondence generated by the Marieville Neighborhood Partnership. RESPONSE : It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the North Providence Town Council, a municipal elected position, who in his private capacity is the President of The Marieville Neighborhood Partnership, a private non-profit organization in the Town of North Providence, is not prohibited by the Code of Ethics from serving in both positions subject to certain restrictions as outlined below. The Petitioner is a member of the North Providence Town Council (“Town Council”) representing District 2, which encompasses the Marieville neighborhood area. He represents that in December of 2018 he formed a private non-profit organization called the Marieville Neighborhood Partnership (“Partnership”) of which he is currently the President. The Petitioner represents that he does not receive any compensation for his service as President of the Partnership and explains that the Partnership is engaged in community outreach programs such as community cleanups, coat drives, and beautification. As part of its outreach efforts, the Partnership issues newsletters and conducts fundraisers. The Petitioner states that, thus far, the Partnership has conducted one fundraiser for which no fundraising materials were distributed either by mail or email. Rather, a local business hosted the fundraising event on its premises, having advertised it by putting a flyer at its establishment and selling tickets for the event. The Petitioner further states that the Partnership will likely have more fundraisers in the future, but did not specify any particular fundraising process. Cognizant of the Code of Ethics, the Petitioner represents that he would not participate in any Town Council vote that involves or would financially impact the Partnership. Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding 1) whether the Code of Ethics prohibits him from simultaneous service in both positions and, if so, what restrictions, if any, the Code of Ethics places upon him in carrying out his Town Council duties; and 2) whether the Petitioner’s name may appear on any fundraising materials, newsletters or other correspondence by the Partnership. Under the Code of Ethics, a public official shall not accept other employment which will either impair his independence of judgment or induce him to disclose confidential information acquired by him in the course of and by reason of his official duties. R.I. Gen. Laws § 36-14-5(b). Additionally, a public official shall not have an interest or engage in any business, employment, transaction or professional activity, which is in substantial conflict with the proper discharge of his duties in the public interest. Section 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, his business associate or employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). The Code of Ethics also provides that a public official may not use his public office or confidential information received though his public office to obtain financial gain, other than that provided by law, for himself or any person within his family, his business associate or any business by which he is employed or represents. Section 36-14-5(d). A “business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective.” Section 36-14-2(3). Further, the Code of Ethics prohibits a public official from representing himself or another individual or business entity before a state or municipal agency of which he is a member, by which he is employed or for which he is the appointing authority. Sections 36-14-5(e)(1) & (2) and 36-14-2(7); Commission Regulation 520-RICR-00-00-1.1.4(A)(1) Representing Oneself or Others, Defined (36-14-5016). A person represents himself before a state or municipal agency if “he [] participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of the agency in his [] own favor.” Section 36-14-2(12). These prohibitions apply while the public official is in office and for one year thereafter. Section 36-14-5(e)(4). The Code of Ethics also prohibits a public official from voting or participating in the consideration and disposition of a matter in which his business associate or employer, or a person authorized by his business associate or employer, appears or presents evidence or arguments before his state or municipal agency. Commission Regulation 520-RICR-00-00-1.2.1(A)(2) Additional Circumstances Warranting Recusal (36-14-5002) (“Regulation 1.2.1”). However, Regulation 1.2.1(B)(2) contains an exception providing that a person subject to the Code of Ethics is not required to recuse himself when his business associate appears before his state or municipal agency during a period when public comment is allowed, to offer comment on a matter of general public interest, provided that all other members of the public have an equal opportunity to comment, and further provided that the business associate is not otherwise a party or participant, and has no personal financial interest, in the matter under discussion. 1. Petitioner ’ s Service in Both Capacities The Ethics Commission has consistently opined that public officials and employees are not inherently prohibited from holding private positions that are in addition to their primary public employment or positions subject, however, to certain restrictions and provided that their private position would neither impair their independence of judgment nor create an interest in substantial conflict with their public duties. See, e.g., A.O. 2019-27 (opining that a Motor Vehicle Operator Examiner for the Division of Motor Vehicles (“DMV”) was not prohibited by the Code of Ethics from accepting employment as a Course Administrator for the Driver Retraining Program at the Community College of Rhode Island, provided that all work was performed on his own time and without the use of public resources or confidential information obtained as part of his state employment at the DMV). Here, upon consideration of the Code of Ethics, prior advisory opinions, and the facts as represented by the Petitioner, it is the opinion of the Ethics Commission that there is no indication that serving as the President of the Partnership would either impair his independence of judgment or create an interest in substantial conflict with the proper discharge of his public duties as a Town Council member. Therefore, the Petitioner is not prohibited by the Code of Ethics from serving simultaneously in both positions, provided that all his work on behalf of the Partnership is performed on his own time and without the use of public resources or confidential information obtained as part of his public service as a Town Council member. However, such simultaneous public and private service requires the Petitioner to remain vigilant in identifying and managing any conflicts of interest as discussed below that may arise between his public and private duties. The Ethics Commission has consistently concluded that public officials are “business associates” of entities, including non-profit organizations, 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. See, e.g., A.O. 2014-14 (opining that the Director of the Rhode Island Department of Environmental Management (“DEM”), who was also a Director of the Rhode Island Boy Scouts (“Boy Scouts”), was a business associate of the Boy Scouts). Accordingly, in the instant matter, given the Petitioner’s leadership position as the President of the Partnership, he is a “business associate” of said Partnership. Applying the above-cited provisions of the Code of Ethics to the instant question presented, the Ethics Commission is limited at this time to offering only general guidance to the Petitioner regarding the additional limitations the Code of Ethics places on him in carrying out his public duties as a Town Council member. For instance, the Petitioner is prohibited by the Code of Ethics from representing himself or others, including the Partnership, before the Town Council and/or other boards over which the Town Council has appointing authority. The Petitioner must also recuse from discussions and decision-making in any Town Council matters that impact or involve the Partnership or in which the Partnership appears or presents evidence or arguments unless the circumstances are such that the exception contained in Regulation 1.2.1(B)(2) applies and all of its requirements are satisfied. Recusal shall be in accordance with section 36-14-6. Finally, because of the very general nature of this advisory opinion and the inability of the Ethics Commission to predict all possible scenarios which will require the Petitioner’s recusal, the Petitioner is advised to seek further guidance from the Ethics Commission as specific issues arise. 2. Appearance of Petitioner ’ s Name on Fundraising Materials, Newsletters or Other Correspondence A public official is prohibited from soliciting or accepting a gift or certain contributions with the understanding that the official’s vote, official action, or judgment would be influenced thereby. See section 36-14-5(g). Furthermore, Commission Regulation 520-RICR-00-00-1.4.4 Transactions with Subordinates (36-14-5011) (“Regulation 1.4.4”) generally prohibits persons subject to the Code of Ethics from engaging in financial transactions with, or soliciting contributions from, a subordinate over whom he exercises supervisory responsibilities in the course of his official duties. However, that prohibition does not apply where the transaction is initiated by the subordinate. See Regulation 1.4.4(A)(2). The regulation also expressly states that the term “subordinate” includes an employee, contractor, consultant, or appointed official of the official’s agency. See Regulation 1.4.4(C). Given the general facts as represented by the Petitioner, and without knowing exactly how future fundraising materials, correspondence, and newsletters will be distributed, the language and information used in them, and the identity of the intended recipients, the Ethics Commission is unable to provide specific guidance at this time. Based on somewhat similar circumstances as those presented here, the Ethics Commission issued Advisory Opinion 2006-10 to the Director of Administration for the West Warwick Public Schools, who also served as the President of the Rhode Island Association of School Business Officials (“RIASBO”), a private non-for-profit professional organization whose members consisted primarily of school employees. There, RIASBO held a Product Showcase and Trade Show (“Trade Show”) for which it sent out invitations to various school vendors inviting them to purchase exhibition space. The Ethics Commission opined that RIASBO could solicit school vendors, but individual RIASBO members, on the other hand, were prohibited from soliciting vendors having business interests that were subject to such members’ supervision as school business officials. Here, applying the analysis of Advisory Opinion 2006-10, it is the opinion of the Ethics Commission that the Petitioner is prohibited by the Code of Ethics from personally soliciting donations from his subordinates as defined in Regulation 1.4.4(C) on behalf of the Partnership. Accordingly, the Petitioner’s name shall not appear on any fundraising materials, newsletters or correspondence sent to his subordinates which solicit donations or any other financial contributions. Finally, the Petitioner is prohibited from using his public position to promote the work of his business associate, the Partnership, and from listing his public position as part of the advertisement of his work on the Partnership. See A.O. 2016-37 (opining that a certified appraiser with the City of Providence Tax Assessor’s Office was not prohibited by the Code of Ethics from working in his private capacity as a real estate sales person, provided that all work was performed on his own time, without the use of public resources or confidential information obtained as part of his public employment, he did not use his public position to promote his private employment, and he did not list his public position as part of the advertisement of his work as a real estate salesperson). The Petitioner is advised to seek further guidance from the Ethics Commission as more specific situations occur that may create a conflict. This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations: § 36-14-2(3) § 36-14-2(7) § 36-14-2(12) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-5(e) § 36-14-5(g) § 36-14-6 § 36-14-7(a) 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002) 520-RICR-00-00-1.4.4 Transactions with Subordinates (36-14-5011) Related Advisory Opinions: A.O. 2019-27 A.O. 2016-37 A.O. 2014-14 A.O. 2006-10 Keywords: Business Associate Secondary Employment Solicitation Transactions with Subordinates