Advisory Opinion No. 2011-41

Re: Louis A. Cerbo, Ed.D.

QUESTION PRESENTED

The Petitioner, a licensed clinical psychologist, who has accepted an offer of employment as the Clinical Director (Psychologist) for the Rhode Island Department of Corrections, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from continuing to provide consulting services, in his private capacity, to another state agency as an independent contractor.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a licensed clinical psychologist, who has accepted an offer of employment as the Clinical Director (Psychologist) for the Rhode Island Department of Corrections, a state employee position, is not prohibited by the Code of Ethics from continuing to provide consulting services, in his private capacity, to another state agency as an independent contractor, 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 public employment.

The Petitioner is a licensed clinical psychologist. He represents that he was recently offered and has accepted a position as the Clinical Director (Psychologist) for the Rhode Island Department of Corrections (“DOC”), commencing on August 29, 2011. He informs that he will be overseeing the psychological clinical services at DOC and providing consultation and professional advice in the diagnosis, care, and treatment of inmates with mental disabilities and substance abuse histories. He advises that the Clinical Director is a full-time position, working Monday through Friday, 8:30 a.m. to 4:00 p.m.

In addition to his new state employee position, the Petitioner represents that he would like to continue his private practice as a clinical psychologist on his own time, maintaining his private office and seeing patients after state work hours. He advises that for approximately the past fifteen (15) years, his private practice has included providing Social Security evaluations as a consultant/independent contractor for the Rhode Island Department of Human Services Office of Rehabilitation Services (“ORS”). He states that he began consulting for ORS after originally responding to a public posting seeking a licensed psychologist to perform and complete these evaluations. He informs that the ORS evaluations consist of mental status examinations, psychological testing, child psychological testing, and vocational appraisals. He represents that the ORS evaluations would occur after his DOC work hours, three evenings a week from approximately 5:00 p.m. to 8:30 p.m. and on Saturday mornings. He also states that he would not use state equipment or resources for his private practice or ORS evaluations. To avoid any potential conflicts of interest, the Petitioner represents that he would not accept referrals, from ORS or another private party, of any individuals who are under current DOC supervision or with whom he had a clinical relationship while they were incarcerated at the DOC. Based upon the above representations, the Petitioner seeks an advisory opinion as to whether the Code of Ethics prohibits him from continuing to obtain referrals and receive funds from another state agency as a consultant/independent contractor to the ORS, given his position as the DOC Clinical Director.

Under the Code of Ethics, 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. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if 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). 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).

Additionally, a public official may not accept other employment that would 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. Section 36-14-5(b). Finally, a public official may not enter into a contract with a state or municipal agency unless the contract has been 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). This section further provides that “contracts for professional services which have been customarily awarded without competitive bidding shall not be subject to competitive bidding if awarded through a process of public notice and disclosure of financial details.” Id.

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. 2011-20 (opining that a senior planner at the Rhode Island Department of Administration, Division of Planning, was 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); A.O. 2009-17 (opining that the Chief Legal Counsel to the DOC may simultaneously serve as a bail commissioner provided that her official duties do not directly relate to her private employment, she completes such work outside of her normal working hours, and she does not appear before her own agency); 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).

In the present matter, based upon the Petitioner’s above representations, it is the opinion of the Ethics Commission that the Petitioner’s private consultant work for ORS is not in substantial conflict with the exercise of his public duties as the DOC Clinical Director. The Code of Ethics does not prohibit the Petitioner from working as a consultant for ORS, in his private capacity, 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 DOC. However, the Petitioner cannot accept any referrals for psychological evaluations in his private capacity that he knows have come to him because of his position at the DOC. The Petitioner is reminded that as a state employee any future contracts for professional services which he seeks in his private capacity from a state or municipal agency must be awarded through a public process in compliance with section 5(h). The Petitioner is also advised to either recuse himself or seek further guidance from the Commission if matters relating to his private employment as a licensed clinical psychologist, including the performance of ORS evaluations, come before him in his public position at DOC. 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 DOC, the Department of Human Services ORS, or pursuant to any other policy, statute, rule, or regulation.

Code Citations:

§ 36-14-5(a)

§ 36-14-5(b)

§ 36-14-5(d)

§ 36-14-5(h)

§ 36-14-7(a)

Related Advisory Opinions:

A.O. 2011-20

A.O. 2009-17

A.O. 2007-34

A.O. 2005-44

Keywords:

Private Employment