Advisory Opinion No. 2017-35 Rhode Island Ethics Commission Advisory Opinion No. 2017-35 Approved: August 8, 2017 Re: Representative Lauren H. Carson QUESTION PRESENTED: The Petitioner, a legislator serving in the Rhode Island House of Representatives, a state elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from working, through her private employment with a non-profit organization, on a project that is funded through a grant administered by the Rhode Island Department of Environmental Management. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a legislator serving in the Rhode Island House of Representatives, a state elected position, is not prohibited from working, through her private employment with a non-profit organization, on a project that is funded through a grant administered by the Rhode Island Department of Environmental Management. The Petitioner is a member of the Rhode Island House of Representatives. In her private capacity she is employed as a Community Organizer by Rhode Island Clean Water Action (“Clean Water Action”), a private non-profit organization that, according to its website, works to protect Rhode Island’s environment, health, economic well-being and community quality of life.[1] The Petitioner states that Clean Water Action is one of 37 organizations that make up the RI Green Infrastructure Coalition (“the Coalition”), a group of people and organizations who have joined together to promote and construct pathways for rainwater, melting snow and other run-off so that it avoids paved areas where it may pick up contaminants that will infiltrate the earth and urban waterways. The Coalition is funded primarily through grants from public and private sources, with the Environmental Council of Rhode Island (“ECRI”) serving as the Coalition’s fiscal agent to accept, hold and disburse grants and donations made to the Coalition. The Petitioner represents that in November 2016, Rhode Island voters approved a $35 million Green Economy Bond to support investments in water quality, land cleanup, farmland, recreational facilities, and open space. The Petitioner states that the bond includes $6.4 million in matching grants available through the Rhode Island Department of Environmental Management (“RIDEM”) to help communities reduce flooding, control stormwater and strengthen Rhode Island’s climate resilience. According to the Petitioner, the Aquidneck Island Planning Commission (“AIPC”)[2] intends to submit a grant proposal to the RIDEM for approximately $300,000 in funding made available by the Green Economy Bond to help reduce stormwater runoff on Aquidneck Island. AIPC’s grant application proposes to outsource the community engagement aspect of the project to the Coalition and its member organizations, including the Petitioner’s employer, Clean Water Action. Therefore, the Petitioner notes that if AIPC’s proposal is selected for funding then several organizations, including her employer, will receive a total of approximately $25,000 in grant funds and, as an employee of Clean Water Action, the Petitioner will perform work on a project funded by the grant. The Petitioner seeks guidance as to whether the Code of Ethics prohibits or limits her participation in the project, given its funding source and her position in the Rhode Island House of Representatives. The Code of Ethics prohibits a public official from using her public office or confidential information received through her holding public office to obtain financial gain, other than that provided by law, for herself, a family member, employer or business associate. R.I. Gen. Laws § 36-14-5(d). The Code of Ethics also prohibits a person subject to the Code from having any interest or engaging in any business or employment which is “in substantial conflict with the proper discharge of her duties” in the public interest and of her responsibilities as prescribed in the laws of this state. Section 36-14-5(a). A public official is also prohibited from accepting other employment that will impair her independence of judgment as to her official duties or require or induce her to disclose confidential information acquired in the course of her official duties. Section 36-14-5(b). Finally, a state public official who exercises fiscal or jurisdictional control over a state agency is not permitted to act, for compensation, as an agent or attorney before such agency on behalf of any person or organization in a matter in which the state has an interest or is a party. Commission Regulation 36-14-5008. The Ethics Commission has previously issued advisory opinions to legislators under somewhat analogous facts involving grant funds. For example, in Advisory Opinion 2004-22, the Ethics Commission opined that a State Senator who was a dairy farmer could apply for and receive funding under the Forest Legacy Program administered by the RIDEM and funded by the United States Forest Service and private sources. In reaching that opinion the Ethics Commission noted that the petitioner was not involved in establishing RIDEM’s selection criteria for participants. The petitioner was also advised to recuse from any future matters in the legislature, if any, involving the Forest Legacy Program. See also A.O. 2007-25 (state legislator may accept consulting work from non-profit organization that has received, and may continue to receive, legislative grants, provided that she recuses from participating in any legislative decision-making relative to awarding such grants). Here, the source of the grant funds at issue is a Green Economy Bond that was approved by Rhode Island voters as a ballot measure. The House of Representatives has no ongoing role in the administration or awarding of the grant funds. Based on these and other facts represented by the Petitioner, it is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner from continuing her employment with Clean Water Action to perform work on a project proposed by the AIPC and funded by a grant administered by the RIDEM. There is no indication that the Petitioner will take any official action as a legislator to direct or continue RIDEM grant funds to her private employer. The Petitioner does not seek to act as an agent or attorney before RIDEM in a matter in which the state has an interest or is a party. Furthermore, there nothing to indicate that the Petitioner’s work on the project would impair her independence of judgment as to her official duties in the House of Representatives, or create a potential for her use of public resources or confidential information to benefit herself or her employer. 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(b) § 36-14-5(c) § 36-14-5(d) Commission Regulation 36-14-5008 Related Advisory Opinions: A.O. 2007-25 A.O. 2004-22 Keywords: Private Employment