Advisory Opinion No.2004-9 Re: William P.McKenna A. QUESTION PRESENTED The petitioner, an analyst at the Rhode Island State Budget Office, a state employee position, requests an advisory opinion regarding whether he may serve on his own time as an unpaid Director for the Rhode Island Right to Life Committee’s Political Action Committee (PAC). B. SUMMARY It is the opinion of the Rhode Island Ethics Commission that the petitioner, an analyst at the Rhode Island State Budget Office, a state employee position, may serve on his own time as an unpaid Director for the Rhode Island Right to Life Committee’s PAC, provided that the petitioner recuses from participating in matters that come before him as an analyst at the Rhode Island State Budget Office which may involve this PAC. C. DISCUSSION 1. Facts The petitioner represents that he is employed as an analyst at the Rhode Island State Budget Office. He informs that he wishes to serve on both the state and federal level as Director for the Rhode Island Right to Life Committee’s PAC. In that capacity, the petitioner states that he would be surveying elected officials and political candidates, endorsing select officials and candidates and deciding what monies, if any, to contribute to select candidates. The petitioner represents that he would serve as Director on his own time. He seeks this advisory opinion to determine whether it would be a conflict of interest to serve as a Director for this PAC, given his position as an analyst for the Budget Office. 2. Analysis Under the Code of Ethics, a state employee 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. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if he has reason to believe or expect that he or any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a).He may not accept other employment that will either impair his independence of judgment as to his official duties or employment or require him to disclose confidential information acquired by him in the course of his official duties. See R.I. Gen. Laws § 36-14-5(b). He is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents. See R.I. Gen. Laws § 36-14-5(d). He may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. See R.I. Gen. Laws §§ 36-14-5(e)(1) and (2). Here, provided that the petitioner engages in the aforementioned, private activity on his own time and without the use of public resources, there is no indication that this private activity is in substantial conflict with the petitioner’s public duties as an analyst at the Budget Office. Further, it does not appear likely that such private activity would impair his independence of judgment as to his official duties. For these reasons, the Code does not prohibit the petitioner from serving on either the state or federal level as a Director for this PAC. Under the strictures of R.I. Gen. Laws § 36-14-5(e), however, the petitioner is prohibited from representing himself, any other person or business entity, before the Budget Office, the state agency by which he is employed.(1) In addition, the petitioner is cautioned against using confidential information obtained through his position as an analyst with the Budget Office to obtain financial gain for the Rhode Island Right to Life Committee’s PAC. See R.I. Gen. Laws § 36-14-5(d). Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-5(e) 36-14-7(a) Related Advisory Opinions: 2003-67 2003-42 2003-28 2002-46 2001-26 99-45 98-146 98-109 96-48 96-11 95-51 (1) In 2003, the petitioner requested an advisory opinion regarding whether he could act as a registered lobbyist for various organizations, including the Rhode Island Right to Life Committee. See A.O. 2003-42. The Commission staff recommended, inter alia, that the petitioner may not represent himself, any other person or business entity before the Budget Office. The Commission advised the staff to amend its draft opinion by expanding that proscription to the entire executive branch. See Commission Minutes dated April 29, 2003. In an analogous opinion, A.O. 96-11, the Commission prohibited a former analyst in the Budget Office from lobbying the Budget Office, not the entire executive branch. The staff’s current recommendation is consistent with its original draft version of A.O. 2003-42 and with A.O. 96-11. The staff further recommends that the Commission revisit its consideration of whether the executive branch, in and of itself, constitutes a “state agency.” See Commission Regulation 36-14-2002(4)(a) (defining “state agency” as a department, division or office “within the executive branch of the state government of Rhode Island” which exercises governmental functions other than in a purely advisory nature) (emphasis added).