Advisory Opinion No. 2020-8 Rhode Island Ethics Commission Advisory Opinion No. 2020-8 Approved: January 28, 2020 Re: Christine Monteiro, DAOM/CH, MSTCM QUESTION PRESENTED: The Petitioner, a member of the Rhode Island Department of Health Acupuncture Advisory Board, a state appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from lobbying, in her private capacity as a Doctor of Acupuncture, for the amendment of legislation that would permit specific licensed healthcare professionals, who have completed recognized training, to use a 5-point ear acupuncture protocol to treat individuals who have substance abuse and behavioral issues. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Rhode Island Department of Health Acupuncture Advisory Board, a state appointed position, is not prohibited by the Code of Ethics from lobbying, in her private capacity as a Doctor of Acupuncture, for the amendment of legislation that would permit specific licensed healthcare professionals, who have completed recognized training, to use a 5-point ear acupuncture protocol to treat individuals who have substance abuse and behavioral issues. The Petitioner is a licensed Doctor of Acupuncture who owns and operates Providence Community Acupuncture, LLC (“PCA”). She describes PCA as a community acupuncture clinic dedicated to providing low cost acupuncture for the community, including those challenged with substance abuse and behavioral health issues. She explains that patients choose what to pay from a sliding scale per acupuncture treatment, and that there are no income verifications. The Petitioner states that she was appointed to the Rhode Island Department of Health (“DOH”) Acupuncture Advisory Board (“Board”) in 2017. She further states that she is one of five members on the Board, that her term is for three years, and that she receives no compensation for this public service. The Petitioner identifies the duties of the Board as reviewing the license applications of Doctors of Acupuncture when requested to do so by the Professional Licensing Division of the DOH and reviewing complaints that have been filed against Doctors of Acupuncture. The Petitioner represents that there is presently pending before the Rhode Island General Assembly proposed amendments to Rhode Island’s acupuncture statutes, R.I. Gen. Laws § 5-37.2-1 et seq. (the “Statute”). She further represents that she was one of the individuals who helped draft the proposed amendments in response to the opioid and behavioral health epidemics that presently plague Rhode Island and the rest of the country. The Petitioner explains that the main purpose of the proposed amendments is to clarify the licensing and certification language of the Statute to ensure that acupuncturists do not encounter unintended barriers to becoming licensed in Rhode Island.[1] She states that the amendments would also permit specific licensed healthcare professionals, who have completed recognized training, to use a 5-point ear acupuncture protocol (“5NP”) to treat individuals who have substance abuse and behavioral issues. The Petitioner further states that the proposed amendments would allow for trainings on the use of 5NP to be delivered by the National Association of Detox Acupuncture (“NADA”) or its equivalent and adds that she has no financial interest in NADA and is not a member of that organization. The Petitioner represents that her business, PCA, is one of three clinics in Rhode Island affiliated with the People’s Organization of Community Acupuncture (“POCA”), a national volunteer organization for community acupuncture doctors with state and regional chapters. She further represents that, in September of 2019, an Auricular Acu-Technician Training on the use of 5NP was held at PCA under the auspices of POCA’s Ear-Acupuncture Committee. She explains that the training took place over two days and that four additional follow-up practice sessions were held in the weeks that followed. The Petitioner states that registration fees for the training flowed through PCA and that a PCA employee was paid by PCA to conduct the training. She adds that PCA charged POCA a maintenance administrative fee for the use of space for the training, and that the training resulted in a small financial loss to PCA. The Petitioner included in her letter requesting an advisory opinion correspondence from Mary Claire Dilks, DAOM (CH) (“Dr. Dilks”), a fellow Doctor of Acupuncture who is also President of the Rhode Island Society of Acupuncture (“RISA”).[2] In her letter to the Petitioner, Dr Dilks suggests that the participation by the Petitioner and the Petitioner’s employee, Melissa Tiernan, DAOM/CH, MSOM (“Dr. Tiernan”) in the drafting of the proposed amendments to the Statute, constitutes a conflict of interest because both the Petitioner and Dr. Tiernan stand to benefit financially, given the POCA training that took place at PCA last September, and because the Petitioner and Dr. Tiernan are members of the Board.[3] The Petitioner represents that the proposed amendments to the Statute will not be entertained by the Board or affect the Board’s authority in any way. She further represents that the enabling statute for the Board is silent on the issue of lobbying by Board members, either in their public or private capacities. The Petitioner states that she has registered as a lobbyist for the PCA, and that lobbying in her private capacity for the proposed amendments to the Statue would neither impair her independence of judgment as to her official duties as a Board member, nor require her to disclose confidential information acquired in the course of and by reason of her official duties as a Board member. She further states that when she has lobbied before the General Assembly in the past, she has been silent about her membership on the Board and that she would continue to do so in the future. She explains that it is her desire to lobby for the amendments to the Statute strictly in her private capacity under circumstances where any other lobbyists or members of the public have the same opportunity to do so. It is in the context of these facts that the Petitioner seeks guidance from the Ethics Commission regarding whether the Code of Ethics prohibits her from lobbying, in her individual capacity, for the amendments to the Statute. Under the Code of Ethics, a public official may not accept other employment that will either impair her independence of judgment as to her official duties or require her to disclose confidential information acquired by her in the course of her official duties. R.I. Gen. Laws § 36-14-5(b). Also, a public official may not represent herself or any other person before any state agency of which she is a member or by which she is employed. Section 36-14-5(e)(1), (2); Commission Regulation 520-RICR-00-00-1.1.4(A)(1)(a) & (c) Representing Oneself or Others, Defined (36-14-5016). A “person” is defined as an individual or business entity. Section 36-14-2(7). A public official 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, her family member, her business associate, or any business by which she is employed or represents. Section 36-14-5(d). Additionally, a public official 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. Section 36-14-5(a). 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. Section 36-14-7(a). Finally, the Code of Ethics does contain a “Public Forum Exception” which provides that a public official may publicly express her own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or her spouse or dependent child. Commission Regulation 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003) (“Regulation 1.2.3”). The facts as represented by the Petitioner are analogous to those in Advisory Opinion 2003-67, in which the Ethics Commission opined that the Code of Ethics did not prohibit a part-time attorney with the Rhode Island Department of Labor (“Department of Labor”) from lobbying in her private practice on behalf of the Right to Life Committee, provided that she recuse from participating in matters that might come before her as an attorney with the Department of Labor, and that she refrain from lobbying the Department of Labor. The Ethics Commission further opined that, provided the petitioner engaged in the aforedescribed private activity on her own time and without the use of public resources, there was no indication that the private activity was in substantial conflict with her public duties with the Department of Labor, nor did it appear likely that such private activity would impair her independence of judgment as to her public duties. Furthermore, based on that petitioner’s representations, she would not be representing herself or any other person or business before her own department. Similarly, in Advisory Opinion 2003-28, the Ethics Commission opined that a part-time attorney for the Rhode Island Department of Administration (“Department of Administration”) was not prohibited by the Code of Ethics from accepting private work as a legislative lobbyist before the General Assembly on behalf of Spielo Gaming International, provided that he engaged in that private employment on his own time and without the use of public resources. The Ethics Commission noted no indication that the petitioner’s private employment would be in substantial conflict with his public duties representing the Department of Administration in personnel and disciplinary matters, and that it did not appear likely that such private employment would impair his independence of judgment as to his public duties or require him to disclose confidential information acquired during the course of his public duties. That petitioner also represented that his lobbying activity would be limited to the legislative branch, so that he would not be representing himself or any other person or business before his own department. Here, the Petitioner represents that she would be lobbying the legislative branch in her private capacity as a Doctor of Acupuncture and not in her public capacity as a Board member. She further represents that she would not be making any decisions about the Statute in her public capacity as a Board member because the Board will not be considering the proposed amendments to the Statute, nor will the Board’s authority be affected by them in any way. Importantly, the Petitioner has stated that when she has lobbied in the past, she has been silent about her membership on the Board, and that she would continue to do so in the future. She has stated that lobbying in her private capacity would neither impair her independence of judgment as to her official Board duties nor require her to disclose confidential information acquired in the course of and by reason of those official duties. Accordingly, based upon the Petitioner’s representations, and consistent with the provisions of the Code of Ethics and prior advisory opinions, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from lobbying the General Assembly in her private capacity for the amendments to the Statute. 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(7) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-5(e) § 36-14-7(a) 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003) Other Related Authority: § 5-37.2-1 et seq. Related Advisory Opinions: A.O. 2003-67 A.O. 2003-28 Keywords: Lobbying [1] The Petitioner states that the present inclusion of the word “Oriental” in the Statute makes it unclear which educational and certification routes are prescribed for acupuncturists. She explains that, while acupuncture is Oriental medicine, Oriental medicine includes other types of training that is unrelated to the practice of acupuncture, such as herbal training, for example; therefore, people who have not received herbal training are presently precluded by the Statute from obtaining a license to practice acupuncture. [2] The Petitioner states that she herself was a member of RISA from 2000–2018 and served as an officer between 2000-2004. [3] Dr. Tiernan has submitted her own request for an advisory opinion from the Ethics Commission. She affirmatively represents that she did not participate in the drafting of the proposed amendments to the Statute.