Advisory Opinion No. 2012-32 Advisory Opinion No. 2012-32 Re: Robert Azar, AICP QUESTION PRESENTED The Petitioner, the Acting Director of the Department of Planning and Development for the City of Providence, a municipal employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from teaching a course at BrownUniversity in the spring of 2013. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Acting Director of the Department of Planning and Development for the City of Providence, a municipal employee position, is not prohibited by the Code of Ethics from teaching a course at Brown University in the spring of 2013, provided that all teaching 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 City.However, the Petitioner is required to recuse from any matters relating to BrownUniversity that may come before him in his public capacity as Acting Director of the Department of Planning and Development and refer such matters to his superiors. The Petitioner is the Acting Director of the Department of Planning and Development (“Planning Department”) for the City of Providence (“City”).He has worked in the City’s Planning Department for the past twelve (12) years, recently being promoted to the position of Acting Director in April 2012.He states that he is responsible for supervising all current and long-range planning activities, which includes overseeing the staff that assists the City Plan Commission, the Historic District Commission and the Downtown Design Review Commission (collectively the “Boards”).He informs that staff planners, subordinate to him, compile information, prepare reports and attend the meetings of the Boards.He represents that although the staff planners make recommendations to the Boards, all decision making authority rests within the members of each Board to approve or reject a planner’s proposal.He informs that his work as Acting Director is a full-time position, during the City’s standard work hours of Monday through Friday, 8:30 a.m. to 4:30 p.m.However, he states that he routinely works in excess of the required thirty-five (35) hour work week. In his private capacity, the Petitioner informs that he has been asked by BrownUniversity (“Brown”) to be a visiting instructor in the spring of 2013 in the Urban Studies Department.He states that he would teach an undergraduate class entitled “Downtown Development,” which examines large urban development projects, using Providence for local examples.The class will be held one afternoon per week, most likely from 4:00 p.m. to 6:20 p.m.He represents that he has intermittently taught four (4) classes at Brown as a visiting instructor since 2009.During those employment periods, the Petitioner states that he did not work on City matters involving Brown.The Petitioner seeks advice to determine if it is still appropriate for him to teach at Brown, given his recent promotion to Acting Director of the Planning Department. The Petitioner represents that if permitted to teach at Brown, all of his course preparation and teaching will occur outside of regular work hours or during approved vacation or personal time.He states that he will use one hour of floating holiday leave per week to accommodate the proposed time of the class.He states that he will not use any City materials or property to prepare for or to teach the course.He further states that he will not disclose any confidential information acquired by him in the course of his official duties with the City when teaching at Brown. The Petitioner informs that, at this time, there are no matters involving Brown currently pending before the Planning Department or its planning-related Boards.However, to avoid any conflicts of interest, he represents he will recuse from all Brown related planning matters for the duration of his employment at Brown.In the event of his recusal, he states that his direct superiors, the Deputy Director of Economic Development and Economic Development Director are able and willing to supervise and/or otherwise be responsible for any planning matters involving Brown.The Petitioner represents that he conferred with the Economic Development Director, James S. Bennett, regarding this request for an advisory opinion and informs that Mr. Bennett agrees, in the event of the Petitioner’s recusal, to step in and will approve one hour of floating holiday time per week to teach the class. Pursuant to the Code of Ethics, 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. R.I. Gen. Laws § 36-14-5(b).Additionally, 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). An official will have an interest in substantial conflict with his official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by reason of his official activity, to the official, a family member, a business associate, an employer or any business which the public official represents. Section 36-14-7(a).Furthermore, a public official may not use his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, his family members, his employer or any business associate. Section 36-14-5(d).Finally, a public official must recuse from participating in his agency’s consideration of a matter in which his business associate represents itself. Section 36-14-5(f); Commission Regulation 36-14-5002. The Commission has issued a number of analogous advisory opinions in which it has given approval for employees to accept outside employment.SeeA.O. 2011-41 (opining that the Clinical Director (Psychologist) for the Rhode Island Department of Corrections, was 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 was performed on his own time and without the use of public resources or confidential information obtained as part of his public employment); 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 was 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 Department of Corrections could simultaneously serve as a bail commissioner provided that her official duties did not directly relate to her private employment, she completed such work outside of her normal working hours, and she did not appear before her own agency); A.O. 2007-34 (opining that a supervising planner for the Rhode Island Resources Board could, 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, the Petitioner seeks to teach a course at Brown, entitled “Downtown Development,” to students interested in urban planning.As a visiting instructor at Brown, the Petitioner will impart his years of practical experience in urban planning to his students and in turn, through his course preparation, discover new planning ideas and strategies that would benefit his public duties in the City.This teaching position will not require the Petitioner to appear before the City or any of its agencies on behalf of Brown. This teaching opportunity predates his promotion to Acting Director, given that the Petitioner has been asked by Brown to teach an Urban Planning class on four (4) other occasions.Additionally, the Petitioner represents that he will not use public time, resources, or confidential information gained in his public employment while teaching at Brown.Finally, the Petitioner represents that his supervisor, the Director of Economic Development, has no objections to the Petitioner’s proposed private employment, agrees to oversee any Brown planning matters in the event of the Petitioner’s recusal and will permit the Petitioner to use one hour of holiday time per week to accommodate the proposed class schedule. Based upon the above representations, the Petitioner’s private teaching work at Brown is not in substantial conflict with the exercise of his public duties as the Acting Director of the City’s Planning Department.Accordingly, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from teaching one course in the spring of 2013 at Brown University, provided that all teaching 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 City.However, the Petitioner is required to recuse from any matters relating to Brown University that may come before him in his public capacity as Acting Director of the Planning Department, and refer such matters to his superiors, the Deputy Director of Economic Development and the Economic Development Director. 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 City, 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(f) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5002 Related Advisory Opinions: A.O. 2011-41 A.O. 2011-20 A.O. 2009-17 A.O. 2007-34 Keywords: Private Employment Recusal  The Economic Development Director oversees the operations of the Departments of Planning and Development, Inspections and Standards, and Arts, Culture & Tourism and the Workforce Development Board.