Advisory Opinion No. 2021-34 Rhode Island Ethics Commission Advisory Opinion No. 2021-34 Approved: April 27, 2021 Re: Philip Gould QUESTION PRESENTED The Petitioner, the Administrative Captain for the Town of Lincoln Police Department, a municipal employee position, requests an advisory opinion regarding whether the Code of Ethics allows him to continue serving in that position while seeking election to the position of Town Administrator for the Town of Lincoln and what limitations, if any, the Code of Ethics places upon his ability to campaign for Town Administrator while serving as Administrative Captain. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Administrative Captain for the Town of Lincoln Police Department, a municipal employee position, is not prohibited by the Code of Ethics from continuing to serve in that position while seeking election to the position of Town Administrator for the Town of Lincoln provided that: no public time or resources will be utilized by the Petitioner in furtherance of his campaign; the Petitioner does not solicit, directly or through a surrogate, campaign contributions from his subordinates as defined under the Code of Ethics; and there is no understanding that the campaign contributions would affect any official action by the Petitioner. The Petitioner is the Administrative Captain for the Police Department in the Town of Lincoln (“Town” or “Lincoln”). He explains that he has served in that position for the past eight years but has worked for the Town in various positions for 28 years. The Petitioner cites among his duties as Administrative Captain: serving as the Police Department’s Public Information Officer and media liaison; conducting recruiting drives and the hiring process for police officers; and overseeing of some of the mandated training at the Police Department and at the Municipal Police Academy. He states that the day-to-day supervision of Police Department’s officers is conducted by the Operations Captain and that the Petitioner only gets involved with personnel decisions in the absence of the Chief. The Petitioner represents that he does not have supervisory authority over Police Department contractors or vendors. He also represents that his normal working hours are Monday through Friday, from 8 a.m. to 4 p.m. The Petitioner states that the Lincoln Town Administrator (“Town Administrator”) has announced his intention to leave his current office to take a position in the Governor’s cabinet. The Petitioner further states that the Town Administrator’s departure will create a vacancy that will require a special election in Lincoln. The Petitioner represents that he intends to seek the position of Town Administrator. He explains that, while the Town Charter clearly prohibits a Town employee from holding an elected position in the Town, it does not prohibit a Town employee from seeking such a position. The Petitioner notes that he is aware of the Code of Ethics’ prohibition against engaging in campaign-related activities during his normal working hours and states that he would only campaign outside of such hours or during his time off, including during his vacation and compensatory time. Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether the Code of Ethics allows him to continue serving as Administrative Captain while seeking election to the position of Town Administrator and what limitations, if any, the Code of Ethics places upon his ability to campaign. Under the Code of Ethics, a public official or employee shall not have any interest, financial or otherwise, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws 36-14-5(a). A substantial conflict of interest exists if a public official or employee has reason to believe or expect that he, any person within his family, his business associate or his 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 prohibits a public official or employee from using his public office or confidential information received through holding 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). Further, a public official or employee may not solicit or accept any gift, loan, political contribution, reward, or promise of future employment based on any understanding or expectation that his vote, official action, or judgment will be influenced thereby. Section 36-14-5(g). Pursuant to Commission Regulation 520-RICR-00-00-1.4.4 Transactions with Subordinates (36-14-5011) (“Regulation 1.4.4”) a public official or employee shall not solicit or request, directly or through a surrogate, any political contributions from a subordinate for whom, in his official duties and responsibilities, he exercises supervisory responsibilities. Regulation 1.4.4(B). This regulation, however, does not prohibit or limit the First Amendment rights of a subordinate to make unsolicited political contributions. Regulation 1.4.4(B). For purposes of the prohibition on solicitations, the term “subordinate” includes other employees, contractors, consultants, or appointed officials of the official’s or employee’s agency. Regulation 1.4.4(C). While the above provisions of the Code of Ethics serve to regulate the potential interaction between the Petitioner’s public duties as Administrative Captain and his private campaign for public office, they do not bar such simultaneous endeavors, provided that requirements of the Code of Ethics cited above are followed. On several occasions, the Ethics Commission has guided the conduct of public officials and employees who were either seeking election to public office or who wished to participate in campaigning and fundraising activities on behalf of political candidates. In Advisory Opinion 2008-3, for example, the Ethics Commission opined that the Solicitor for the City of Providence was not prohibited by the Code of Ethics from campaigning for election to the position of Attorney General of the State of Rhode Island, provided that he did not use public time or resources to assist his campaign, and did not solicit his subordinates to make political contributions, purchase tickets to events, or otherwise assist in campaign-related events. See also A.O. 2020-45 (opining that the Director of the Rhode Island Department of Administration, who was interested in exploring the possibility of running for Mayor of the City of Providence and wished to solicit and accept campaign contributions from persons who were not state employees or vendors was allowed to do so, provided that the persons solicited were not otherwise the petitioner’s subordinates as defined under the Code of Ethics; that there was no expectation or understanding that the campaign contributions would affect any official action by the petitioner; and that no public time or resources were utilized by the petitioner in furtherance of his campaign); A.O. 2006-41(opining that the Director of Municipal and External Affairs in the Office of the Governor was not prohibited from serving as the Honorary Chair of the Carcieri for Governor Committee (“the Committee”), provided that she did so on her personal time or after business hours; without the involvement of state employees, equipment, or resources; and without the solicitation of her subordinates for the purchase of fundraising tickets and/or other political contributions on behalf of the Committee); A.O. 99-44 (opining that individual members of the Rhode Island Housing and Mortgage Finance Corporation’s Board of Commissioners and staff (“RIHMFC”) were prohibited from soliciting contributions from entities that did business with that agency except in situations where the RIHMFC members or staff who solicited contributions did not exercise supervisory responsibility or control over the entity(ies) being solicited and were not acting on behalf of someone who exercised such responsibility). The Ethics Commission has also enforced the provisions of Regulation 1.4.4(B) in a complaint context. For example, in In re: Donald L. Carcieri, Complaint No. 2006-9, the Ethics Commission found that the Respondent, the Governor of the State of Rhode Island, violated what is now Regulation 1.4.4(B) by mailing at least five separate mailings soliciting campaign contributions from Rhode Island residents, some of whom were state employees appointed by the Respondent and under his direct supervision and control. Likewise, the Ethics Commission found that the Respondent in In re: A. Ralph Mollis, Complaint No. 2006-6, who was the Mayor of the Town of North Providence and a candidate for Secretary of State, violated Regulation 1.4.4(B) by mailing correspondence soliciting campaign contributions from individuals, some of whom were employees of the Town of North Providence. Accordingly, based on the Petitioner’s representations, and consistent with the applicable provisions of the Code of Ethics, past advisory opinions issued, and the complaint matters cited above, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from continuing to serve as Administrative Captain for the Lincoln Police Department while seeking election to the position of Lincoln Town Administrator provided that: no public time or resources are utilized by the Petitioner in furtherance of his campaign; the Petitioner does not solicit or request, directly or through a surrogate, any political contributions from a subordinate as defined under the Code of Ethics, for whom, in his official duties and responsibilities, he exercises supervisory responsibilities, including employees, contractors, consultants, or officials whom the Petitioner has appointed; and there is no understanding that the campaign contributions would affect any official action by the Petitioner. Additionally, all campaign work by the Petitioner must be performed on his own time, and with his own personnel, supplies, and equipment. The Petitioner is encouraged to seek additional advice from the Ethics Commission in the future if more specific questions regarding his candidacy arise. 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 § 36-14-5(a) § 36-14-5(d) § 36-14-5(g) § 36-14-7(a) 520-RICR-00-00-1.4.4 Transactions with Subordinates (36-14-5011) Related Advisory Opinions: A.O. 2020-45 A.O. 2008-3 A.O. 2006-41 A.O. 99-44 Other Related Authorities In re: Donald L. Carcieri , Complaint No. 2006-9 In re: A. Ralph Mollis , Complaint No. 2006-6 Keywords: Campaign Contributions