Advisory Opinion No. 2011-20

Re: Paul Gonsalves

QUESTION PRESENTED

The Petitioner, a Senior Planner at the Rhode Island Department of Administration, Division of Planning, a state employee position, seeks an advisory opinion as to whether the Code of Ethics prohibits him from working, in his private capacity, as a realtor.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Senior Planner at the Rhode Island Department of Administration, Division of Planning, a state employee position, is not prohibited by the Code of Ethics from working, in his private capacity, as a realtor, provided that all such work is performed on his own time and without the use of public resources or confidential information obtained as part of his state employment.

The Petitioner is a Senior Planner in the Land Use section of the Statewide Planning Program, which is part of the Rhode Island Department of Administration, Division of Planning (“Division of Planning”). He represents that his responsibilities include reviewing and advising the state, cities, and towns as to comprehensive plans, which might include changes to zoning, housing regulations, parking, traffic, highways, natural resources, and general plans for communities. He further represents that most of his work involves collecting and analyzing data, and subsequently making recommendations for improvements in all areas of urban planning. He also states that his duties do not include regular contact with the public.

The Petitioner informs that he would like to engage in a personal part-time business venture to be performed on nights and weekends, outside of his normal working hours, and without the use of any public resources. He represents that he is licensed realtor in Rhode Island. He further represents that he is affiliated with a realty company in Pawtucket, but has yet to begin selling properties, renting properties, or making any profit from this business venture until he receives an advisory opinion.

The Petitioner represents that he will not solicit clients for his work as a realtor from any person that has an interest in his public duties, including his coworkers, municipal officials working with the Division of Planning, and members of the public that he may encounter in his official capacity. As such, the Petitioner seeks an advisory opinion as to whether the Code of Ethics prohibits him from engaging in part-time employment, in his private capacity, as a realtor.

Under the Code of Ethics, a public official or employee is prohibited from accepting 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. R.I. Gen. Laws Â§ 36-14-5(b). A public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. Section 36-14-5(a). A substantial conflict of interest exists if, for example, an official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Finally, a public official may not use his office for pecuniary gain, other than as provided by law, for himself, a family member, employer, business associate, or a business that he represents. Section 36-14-5(d).

The Commission has issued a number of advisory opinions in which it has given approval for employees to accept outside employment provided that: a) the employees’ official duties for their agency do not directly relate to their private employment; b) the employees complete the work outside of their normal working hours; c) the employees do not appear before their own agency; and d) the employees do not use public resources for their outside employment. See A.O. 2007-34 (opining that a supervising planner for the Rhode Island Resources Board, may, on her own time and in her private capacity, engage in the sale of recycled food barrels and retrofitted rain barrels given her representations that she would not solicit clients with an interest in her public duties, she would not use any public resources and would complete the activities outside of her work hours); A.O. 2005-44 (opining that a Housing Officer for the City of Warwick’s Office of Housing and Community Development may sell and make real estate referrals in the City, provided that he does so in his private capacity and does not use public resources or confidential information obtained as part of his employment with the City).

In the present matter, based upon the Petitioner’s above representations, it is the opinion of the Ethics Commission that the Petitioner’s private employment as a realtor is not in substantial conflict with the exercise of his public duties. Accordingly, the Code of Ethics does not prohibit the Petitioner, in his private capacity, from working as a realtor, provided that all work is performed on his own time, and he does not use public resources or confidential information obtained as part of his employment with the Division of Planning. The Petitioner is reminded that he cannot solicit clients for his work as a realtor from any person that has an interest in his public duties, including his coworkers, municipal officials working with the Division of Planning, and members of the public that he may encounter in his official capacity. The Petitioner is also advised to either recuse himself or seek further guidance from the Commission if matters relating to his private employment come before him in his public position. Finally, this advisory opinion only considers the Code of Ethics and provides no opinion as to whether such outside employment is permissible under the policies of the Department of Administration, the Division of Planning, or pursuant to any other policy, statute, rule, or regulation.

Code Citations:

Â§ 36-14-5(a)

Â§ 36-14-5(b)

Â§ 36-14-5(d)

Â§ 36-14-7(a)

Related Advisory Opinions:

A.O. 2007-34

A.O. 2005-44

Keywords:

Private Employment

Issued March 8, 2011