Advisory Opinion No. 2003-25

Re: Azim Mazagonwalla

QUESTION PRESENTED

The petitioner, a member of the Rhode Island State Council on the Arts, a state appointed position, requests an advisory opinion regarding whether any provisions of the Code of Ethics are implicated if his spouse is hired as a consultant for a private, non-profit organization that receives federal grant funding administered by the Rhode Island State Council on the Arts.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the spouse of the petitioner, a member of the Rhode Island State Council on the Arts (Arts Council), a state appointed position, may be hired as a consultant for a private, non-profit organization that receives federal grant funding administered by the Arts Council, but that the petitioner may not participate in any specific Arts Council decisions that would impact his spouse's financial interests.

The petitioner represents that the Arts Council is one of three state agencies (also including the Rhode Island Department of Elementary and Secondary Education and the Rhode Island Office of Higher Education) involved in a collaborative project called the Rhode Island Arts Learning Network (Learning Network). The Learning Network's activities are directed by a working group of staff members of the three agencies involved. The Learning Network partners with and brings together a variety of arts and education organizations and individuals to provide access to arts education for Rhode Island youth, in and out of school.

The petitioner represents that one of the Learning Network's non-profit partners is potentially interested in hiring the petitioner's spouse as a consultant. The petitioner informs that his spouse has worked with both this non-profit organization and with the Arts Council previously, prior to the petitioner's appointment to the Arts Council by the Governor. The petitioner further notes that the Arts Council does not involve itself in the non-profit organization's hiring of consultants. However, the funds used by the non-profit organization to hire the consultant will come from a grant of federal funds administered by the Arts Council.

Funding for the Learning Network's partners comes from federal grant money, administered by the Arts Council, for the support of arts education. The Arts Council does not make a specific vote to award such grants, but rather they are line items in the Arts Council's overall budget prepared by the Arts Council staff. The appointed members of the Arts Council do not vote on such specific line items in the budget, but only vote to approve the entire budget. The petitioner asks whether the facts as represented implicate any of the provisions of the Code of Ethics.

Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). An official has an interest in substantial conflict with his official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, his family member, his business associate, his employer or any business he represents. R.I. Gen. Laws § 36-14-7(a). Also, a public official may not use his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, his family member, his business associate, his employer or any business he represents. R.I. Gen. Laws § 36-14-5(d). Finally, the spouse of a public official shall not accept a promise of future employment based on any understanding that the judgment of the public official will be influenced thereby. R.I. Gen. Laws § 36-14-5(g).

Based on the above, the petitioner may not participate in any Arts Council business that would directly impact his spouse's financial interests. This would include, among other things, any specific decision to approve a budgetary line item relative to the non-profit organization's receipt of grant money.

The petitioner's representations, however, indicate that the Arts Council does not approve or deny specific line items, but instead approves or rejects the budget as a whole. In these circumstances, the Commission finds that a decision to approve the overall budget is not prohibited by the Code of Ethics. This is consistent with past advisory opinions allowing officials to vote on entire departmental budgets, notwithstanding the fact that the official's spouse is affected by a single line item in the budget. The Commission has reasoned that in such circumstances, voting on an overall budget is sufficiently remote from specific items within the budget so as not to constitute a substantial conflict of interest. See A.O. 2003-9 (Finance Board member may participate and/or vote on budget issues, provided that he does not participate and/or vote on the School Department’s budget as a line item or on personnel matters related to his spouse as a School Department teacher); A.O. 2002-44 (Council member may participate and/or vote on budget issues, provided that he may not participate and/or vote on the School Department’s budget as a line item or on matters related to personnel issues affecting his spouse as a School Department employee); A.O. 98-88 (Councilor may participate and vote to approve or reject the Town budget as a whole notwithstanding the fact that his spouse may be affected by his vote).

In this matter, the Commission similarly concludes that the petitioner may participate and/or vote in the Arts Council's consideration of its overall budget, provided that he recuses from participation and/or vote on the subject grant as a line item, or on matters related to issues affecting his spouse as a consultant to the subject non-profit organization. Notice of recusal, if required, should be filed with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2003-9

2002-44

98-88

Keywords:

Budgets

Family: private employment