Advisory Opinion No. 2013-20 Advisory Opinion No. 2013-20 Re: Anthony Ciacciarelli QUESTION PRESENTED The Petitioner, an Inspector within the Department of Interceptor Maintenance at the Narragansett Bay Commission, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from conducting Pipeline Assessment training sessions in his private capacity. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, an Inspector within the Department of Interceptor Maintenance at the Narragansett Bay Commission (“NBC”), a state employee position, is not prohibited by the Code of Ethics from conducting Pipeline Assessment training sessions in his private capacity, provided that: (1) he completes such work outside of normal working hours and without the use of NBC resources; (2) he does not use his NBC position to recruit students; (3) he does not conduct training sessions for any former or current NBC contractors, or any contractors located within NBC’s service area; and (4) he recuses from inspecting any work performed by a contractor that he is scheduled to train or has recently trained. The Petitioner is an Inspector with the Department of Interceptor Maintenance at the Narragansett Bay Commission (“NBC”). NBC, a non-profit corporation established in 1980 by state statute, was created for the purpose of acquiring, operating and upgrading the metropolitan Providence wastewater collection and treatment facilities. NBC’s service area encompasses Providence, North Providence, Johnston, Pawtucket, Central Falls, Cumberland, Lincoln, the northern portion of East Providence, and small sections of Cranston and Smithfield. The Petitioner states that his responsibilities as an Inspector include the inspection and maintenance of NBC district sewer lines and the inspection of direct connections into NBC sewers; as well as database management and inventory control, and the enforcement of NBC rules and regulations. He informs that his work involves inspection only and he refers any pipeline deficiencies to the construction department for repairs. The Petitioner represents that in December 2012 NBC paid for him to complete the National Association of Sewer Service Companies’ (“NASSCO”)[1]Pipeline Assessment and Certification Program in Baltimore, Maryland.[2] He states that he is now a NASSCO certified trainer in the use of remote controlled video camera inspections of pipelines, commonly referred to as “TVing.” He informs that he is certified to train persons to become NASSCO certified users in the proper procedures of video pipeline assessment. He states that he has trained his colleagues at NBC, as part of his regular duties, to use remote controlled video cameras to inspect sewer pipelines for deficiencies such as cracks, grease, roots or other obstructions. The Petitioner states that he would like to conduct NASSCO Pipeline Assessment training sessions in the Rhode Island area. He represents that he would begin by offering NASSCO certification classes for free to gain experience and then in the future would begin charging a fee according to rates set by NASSCO. He informs that NASSCO is developing a database that would list him as a local certified Pipeline Assessment trainer. He states that he would conduct these NASSCO training sessions outside of his normal work hours, after work or on the weekends, travelling to his students’ facility to provide instruction. He informs that he would conduct this work outside of the NBC district, that he would not use his NBC position to recruit potential students and that he would not utilize any NBC equipment or resources as part of the instruction. He states that potential students would consist of pipe maintenance contractors, employees of municipal sewer treatment facilities, and engineering firms that design sewer systems. NBC operates a large sewer system and regularly posts public requests for bids for sewer construction, repairs and work on the ongoing Combined Sewer Overflow project. The Petitioner states that his only role in the bidding process is reviewing the technical descriptions for accuracy in pipeline maintenance contracts prior to the bid being posted. However, he informs that his department does not open or award any bids to NBC contractors. The Petitioner states that he is generally assigned to be the project inspector for pipeline maintenance contracts. He goes to the project sites to ensure compliance with NBC bid specifications, rules and regulations. He also states that he reviews video inspections for accurate and clear depictions of the conditions within the pipes. Given the above representations, the Petitioner seeks advice as to whether he can conduct NASSCO training sessions in his private capacity. Cognizant of the Code of Ethics, the Petitioner represents that he will recuse from inspecting any work performed by contractors that he is scheduled to or has recently trained. He further represents that he will not train contractors that have previously worked with NBC, are currently working with NBC, or are located in NBC’s service area. 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). Additionally, the Code prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any person by which he is employed or whom he represents. Section 36-14-5(d). Finally, the Code of Ethics provides that a public official shall not accept other employment that would impair his independence of judgment as to his official duties or require or induce him to disclose confidential information acquired by him in the course of his official duties. Section 36-14-5(b). In Advisory Opinion 2006-20, the Commission opined that the South Kingstown (“Town”) Superintendent of Communications, who reviewed plans for fire alarm systems for conformity with the Rhode Island State Fire Safety Code (“Safety Code”), could conduct training seminars for a fee in his private capacity regarding the Safety Code, given that his work could be completed on his own time and without Town resources, it involved the State Fire Safety Code and not the views or practices of the Town, and he would not solicit attendance for his seminars through his public office. See also A.O. 2012-32 (opining that Providence’s Acting Director of Planning and Development could teach a course entitled “Downtown Development” at Brown University, provided that all teaching work was performed on his own time, without public resources or confidential information, and the petitioner recused from any matters relating to Brown that came before him in his public capacity as Acting Director); A.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). In the present matter, the Petitioner seeks to conduct NASSCO Pipeline Assessment training sessions for contractors, engineers, and municipal employees that work in the sewer industry. To avoid any conflicts with his public employment, the Petitioner represents that he will not train contractors that have previously worked with NBC, are currently working for NBC, or are located in the service area of NBC. He further represents that he will recuse from reviewing or inspecting any work in his official capacity performed by contractors that he is scheduled to or has recently trained. Upon recusal, the Petitioner is instructed to refer the matter to his supervisor and may not delegate it to a subordinate. He also states that he will conduct these training sessions on his own time in the evenings or on weekends. He represents that he will not use his position at NBC to recruit students for his NASSCO training sessions, but that potential students will find him listed as a certified trainer on the NASSCO website. To that end, all NASSCO related training business must be conducted without NBC resources, using a private email and phone number for NASSCO business and his contact information on NASSCO’s database cannot include his NBC job title, NBC email and/or NBC phone number. For all of these reasons, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from conducting NASSCO Pipeline Assessment training sessions in his private capacity. This opinion solely addresses the Code of Ethics and provides no opinion as to whether such outside employment is permissible under the policies of the Narragansett Bay Commission, or pursuant to any other policy, statute or rule. Code Citations: § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-7(a) Related Advisory Opinions: A.O. 2012-32 A.O. 2011-41 A.O. 2006-20 Keywords: Private Employment [1] NASSCO, a trade association for public and private underground utility operators, is working towards creating a standardized pipeline assessment code by offering training sessions from certified representatives across the country. [2] The Petitioner’s certification is good for three (3) years. He represents that he will pay for any renewal expenses himself if he is permitted to conduct NASSCO training sessions in his private capacity.