Advisory Opinion No. 2013-30 David J. Cluley, P.E. QUESTION PRESENTED The Petitioner, a Senior Civil Engineer for the Bridge Engineering Section of the Rhode Island Department of Transportation, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from being engaged, in his private capacity as a professional engineer, to design an Onsite Wastewater Treatment System for the Rhode Island Department of Environmental Management. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a Senior Civil Engineer for the Bridge Engineering Section of the Rhode Island Department of Transportation, from being engaged in his private capacity as a professional engineer to design an Onsite Wastewater Treatment System for the Rhode Island Department of Environmental Management. The Petitioner is a licensed professional engineer. He states that from 1997 to November 2000, he was employed as a Sanitary Engineer by the Rhode Island Department of Environmental Management (DEM), Office of Water Resources in the Rhode Island Pollution Discharge Elimination System Program. In 2000, the Petitioner left DEM and became employed by the Rhode Island Department of Transportation (DOT) as a Senior Civil Engineer in DOT’s Bridge Engineering Section. In 2004, the Petitioner sought and received an advisory opinion from the Ethics Commission indicating that the Code of Ethics did not prohibit him from taking an examination administered by his prior employer, DEM, to obtain an Individual Sewage Disposal System (ISDS) Class III Designer's license, and upon obtaining the license to commence designing ISDS systems as a side business. A.O. 2004-35. The Petitioner has since obtained his ISDS Class III Designer’s license. The Petitioner states that DEM’s Division of Parks and Recreation is constructing a new facility that will require an Onsite Wastewater Treatment System (OWTS). The Petitioner has been offered the opportunity to design this OWTS in his private capacity as a professional engineer. He represents that he would be working as a subcontractor for another civil engineer who is, himself, a subconsultant to the architect that is contracting directly with DEM on the project. The Petitioner represents that all work on this project would be performed on his own time, outside of his DOT working hours and without the use of any public resources. He also confirms that the DOT has no involvement in the project. Given these representations, the Petitioner asks whether the Code of Ethics prohibits him from engaging in this outside employment. The Code of Ethics provides that the Petitioner, as a public employee, shall not engage in any business, employment, transaction or professional activity 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). The Code of Ethics further prohibits the Petitioner from accepting any other employment which will either impair his independence of judgment as to his official duties or induce him to disclose confidential information acquired by him in the course of and by reason of his official duties. Section 36-14-5(b). Furthermore, the Code of Ethics prohibits the Petitioner from representing himself or any other person before any state or municipal agency of which he is a member or by which he is employed. Section 36-14-5(e)(1), (2). Finally, the Petitioner may only enter into a contract with a state or municipal agency if the contract is awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. Section 36-14-5(h). Here, section 5(h) is not directly applicable because the Petitioner is not contracting with a state or municipal agency. Rather, he seeks to enter into a subcontract with another engineer who is working for the architect on the DEM project. Furthermore, there is no indication that the Petitioner’s private engineering work relative to the DEM’s project would create a substantial conflict of interest with the discharge of the Petitioner’s public duties at the DOT. Similarly, there does not appear to be any risk that his work on this project would either impair his independence of judgment as to his DOT duties or induce him to disclose any confidential information. Finally, the Petitioner’s work on the DEM project will not require him to appear before any division of the DOT, and he represents that he will complete all of his private work on his own time and without the use of any DOT resources. Based on all of the above, it is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner from being engaged to design an Onsite Wastewater Treatment System for the Rhode Island Department of Environmental Management. This opinion solely addresses the application of the Code of Ethics and provides no opinion as to whether such outside employment is permissible under the policies of the DOT, or pursuant to any other policy, rule or statute. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(e) 36-14-5(h) Related Advisory Opinions: A.O. 2004-35 Keywords: Revolving Door Private Employment