Advisory Opinion No. 2015-36 Rhode Island Ethics Commission Advisory Opinion No. 2015-36 Approved: August 18, 2015 Re: Priya Banerjee, M.D. QUESTION PRESENTED: The Petitioner, an Assistant Medical Examiner for the State of Rhode Island, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from working, on her own time, as a private consultant medical examiner and/or expert witness on cases outside of Rhode Island. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, an Assistant Medical Examiner for the State of Rhode Island, a state employee position, is not prohibited by the Code of Ethics from working, on her own time, as a private consultant medical examiner and/or expert witness on cases outside of Rhode Island. The Petitioner is an Assistant Medical Examiner for the State of Rhode Island, and has been serving in this position since July 2010. She states that she is a full-time employee at the Center for the Office of the State Medical Examiners (“Office”), which is part of the Rhode Island Department of Health (“DOH”). She informs that there are four medical examiner positions within the Office, a chief medical examiner and three assistant medical examiners. She states that she usually works Monday through Friday from 8:00 a.m. to 4:00 p.m. and is generally on-call one week of each month, which requires her to be available by phone during the week and to work one day on the weekend.[1] The Petitioner represents that the Office’s jurisdiction is set forth in Rhode Island General Laws § 23-4-4: The office of state medical examiners shall have the authority to make postmortem examinations, to undertake inquests, and to perform autopsies where there may be in its judgment a reasonable belief that the manner of death could be pronounced as: (1) Death by a homicide, suicide, or casualty; (2) Death due to a criminal abortion; (3) Death due to an accident involving lack of due care on the part of a person other than the deceased; (4) Death which is the immediate or remote consequences [sic] of any physical or toxic injury incurred while the deceased person was employed; (5) Death due to the use of addictive or unidentifiable chemical agents; or (6) Death due to an infectious agent capable of spreading an epidemic within the state. The Petitioner states that her responsibilities include performing autopsies; reviewing medical records; reviewing toxicology results; coordinating with other municipal, state and federal agencies; reviewing police reports; visiting crime scenes; testifying before grand juries, at bail hearings and at trials; and overseeing medical residents and fellows. She informs that she prepares a written report for each case and issues a death certificate. The Petitioner states that she would like to begin doing private consulting medical examiner and/or expert witness work on cases outside of Rhode Island. She represents that she would perform her consulting work without any state resources or equipment and outside of state work hours, on weekends and evenings, along with using vacation/personal time as necessary. She states that her private consulting work will not conflict with her public duties as an Assistant Medical Examiner. She informs that typical consulting work would involve reviewing and interpreting autopsy reports and ancillary studies to provide an expert opinion and testifying as an expert witness in court proceedings outside of Rhode Island. She states that she could also perform private autopsies that are not within the jurisdiction of a state medical examiner or work as a contract medical examiner for a neighboring state, performing a few autopsies on the weekend to help with a backlog. She represents that, given there are less than 500 forensic pathologists nationwide, it is a very small community and clients will likely be referred to her by forensic pathologists who work in other states or persons with whom she worked during her medical training in Maryland. The Petitioner represents that, in accordance with the DOH policy on outside employment, she first submitted a written request to DOH’s secondary employment committee. She informs that she received approval from DOH for outside consulting work as a private medical examiner and/or expert witness on cases outside of Rhode Island. However, DOH further notified the Petitioner that she may only work on cases that: (1) are outside of the jurisdiction of the Rhode Island Judiciary and the United States District Court for the District of Rhode Island; and (2) do not involve Rhode Island residents, either as parties to a lawsuit or criminal complaint, or decedents who were Rhode Island residents at the time of their death. Given the above representations, and in accordance with DOH’s restrictions, the Petitioner seeks guidance as to whether her work as a private consultant medical examiner and/or expert witness, outside of the state of Rhode Island, is prohibited by the Code of Ethics. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her 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 she, any person within her family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Additionally, the Code prohibits a public official from using her public office or confidential information received through her public office to obtain financial gain for herself, her family, her business associate, or any business by which she is employed or which she represents. Section 36-14-5(d). Finally, the Code of Ethics provides that a public official shall not accept other employment that would impair her independence of judgment as to her official duties or require or induce her to disclose confidential information acquired by her in the course of her official duties. Section 36-14-5(b). Provided that the above provisions concerning conflicts of interest, use of confidential information and maintaining independence of judgment are satisfied, the Code of Ethics does not preclude a public employee from engaging in outside or secondary employment. For example, in Advisory Opinion 2013-20, the Commission opined that an Inspector for the Narragansett Bay Commission (“NBC”) was not prohibited by the Code of Ethics from conducting Pipeline Assessment training sessions in his private capacity, provided that: (1) he completed such work outside of normal working hours and without the use of NBC resources; (2) he did not use his NBC position to recruit students; (3) he did not conduct training sessions for any former or current NBC contractors, or any contractors located within NBC’s service area; and (4) he recused from inspecting any work on behalf of NBC that was performed by a contractor that he was scheduled to train or had recently trained. See also A.O. 2006-58 (opining that the Deputy Chief Legal Counsel employed by the DOH, Division of Legal Services could be hired by the Federation of State Medical Boards to serve as the Northeast Region attorney for a physician license verification project, provided that he completed the work on his own time, without the use of public resources, and the nature of his work would not require him to appear before his own agency); A.O. 2005-48 (opining that the Executive Director of the Rhode Island Underground Storage Tank Financial Responsibility Fund Review Board could accept membership on the Board of Directors of the National Leaking Underground Storage Tank (“NatLUST”) program, given that Rhode Island did not participate in NatLUST and she would perform her NatLUST duties on her own time and without any public resources). In the present matter, the Petitioner would like to have the opportunity to work as a private consultant medical examiner and/or expert witness on cases outside of Rhode Island. Prior to seeking this advisory opinion, she first received approval for such private employment from her public employer, DOH. To avoid any conflicts with her public employment and consistent with the DOH’s restrictions, she represents that that she will not work on cases that: are subject to the jurisdiction of any state or federal court in the state of Rhode Island; or on cases that involve decedents who were Rhode Island residents at the time of their death, or in which Rhode Island residents are parties to the lawsuit or criminal complaint. She further represents that all private consulting work will be done on her own time and without the use of state resources or equipment. Given the above representations, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from working, on her own time, as a private consultant medical examiner and/or expert witness on cases outside of Rhode Island. This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations: § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-7(a) Related Advisory Opinions: A.O. 2013-20 A.O. 2006-58 A.O. 2005-48 Keywords: Private Employment [1] The Petitioner represents that the chief medical examiner position and an assistant medical examiner position are currently vacant, but notes that the vacancies have been posted on the state’s employment website. She further represents that, due to current staffing levels, she is on-call two weeks per month but is not working on the weekends. She states that the on-call schedule will return to normal when at least one of the positions is filled.