Advisory Opinion No. 2015-38 Rhode Island Ethics Commission Advisory Opinion No. 2015-38 Approved: September 22, 2015 Re: Matthew Vesey QUESTION PRESENTED: The Petitioner, a probation and parole officer at the Rhode Island Department of Corrections, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from working in his private capacity as a domestic violence class facilitator at Vantage Point, Inc. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a probation and parole officer at the Rhode Island Department of Corrections, a state employee position, is not prohibited by the Code of Ethics from working in his private capacity as a domestic violence class facilitator at Vantage Point, Inc, based upon his representations below and 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 probation and parole officer with the Rhode Island Department of Corrections (“DOC”). He represents that he works full-time from 8:30 a.m. to 4:00 p.m. at the Cranston Regional Probation Office. He states that he presently has a caseload of approximately 60 adult probationers who are sex offenders that reside in Providence or at the homeless shelter located at the Adult Correctional Institutions in Cranston. He states that probation is the community supervision of an offender in lieu of incarceration, with conditions imposed by the court for a specified period during which the court retains authority to modify the conditions or to resentence the offender should he or she violate the conditions. He states that his duties include meeting with probationers to closely monitor progress with court-ordered conditions, filing reports with the Superior Court, and court coverage twice a month in the 3rd Division District Court. In his private capacity, the Petitioner would like to begin part-time employment as a domestic violence class facilitator at Vantage Point, Inc., in West Warwick. He represents that Vantage Point provides mental health and substance abuse counseling, in addition to offering a state certified batterer intervention program.[1] He states that he would first be trained and certified by Kathleen Carty of Vantage Point as a domestic violence class facilitator for the batterer intervention program. He states that, upon certification, he would facilitate classes for the batterer intervention program at Vantage Point, which persons convicted of or on probation for a domestic violence offense are generally required to complete.[2] He states that his part-time work at Vantage Point would occur after state work hours on weekdays beginning around 5:00 p.m. and also potentially on Saturdays. The Petitioner states that, prior to requesting this advisory opinion, he discussed his proposed private employment with his immediate supervisor, as well as with the Assistant Probation and Parole Administrator and the Chief Legal Counsel for the DOC. He represents that his supervisors at DOC do not object to this private employment provided that he receives approval from the Ethics Commission in the form an advisory opinion. Cognizant of the Code of Ethics, the Petitioner states that, while at Vantage Point, he would take the following steps to avoid any conflicts of interest. First, he represents that in his private employment he would not participate in any activities, assessments, paperwork or discussions involving any individuals currently in his DOC caseload. Second, he states that he will not reveal any confidential information that he obtained as part of his public employment during the course of his private employment at Vantage Point. Third, he represents that his private employment will occur on his own time, outside of his DOC hours, and he will not use any DOC resources or equipment for his private employment. Finally, he informs that, given that his caseload is limited to sex offender probationers, he can only recall being assigned one probationer that required a referral to a batterer intervention program, such as that which he would teach at Vantage Point. However, he represents that he will recuse from participating in the referral of any probationer to any batterer intervention program for the duration of his employment at Vantage Point. He further states that he does not refer any of the probationers in his caseload to Vantage Point, because Vantage Point does not offer sex offender counseling. 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 business by which he is employed or which 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). The Commission has issued a number of analogous advisory opinions in which it has given approval specifically for DOC employees to accept outside employment. See, e.g., A.O. 2013-22 (opining that a DOC probation officer was not prohibited by the Code of Ethics from providing counseling services in his private capacity at Bridgemark Addiction Recovery Services, provided that he did not participate in any activities that involved individuals on his DOC caseload, and that all such work was performed on his own time and without the use of public resources or equipment, or confidential information obtained as part of his public employment); A.O. 2001-77 (opining that a DOC Probation and Parole Counselor could accept private employment facilitating domestic violence group sessions at the CODAC Treatment Centers, provided that she did not participate in activities at CODAC, including paperwork and/or discussion, where individuals in her DOC probation caseload were involved). See also A.O. 2014-6 (opining that a social worker at the Rhode Island Department of Children, Youth & Families (“DCYF”) Division of Juvenile Corrections was not prohibited by the Code of Ethics from providing counseling services in her private capacity at Counseling Services of RI, provided that she did not participate in any matters involving her current caseload, and all such work was performed on her own time and without the use of public resources or equipment or confidential information obtained at DCYF). Contra A.O. 2006-8 (opining that a DOC Probation and Parole Supervisor was prohibited from accepting a part-time position to provide counseling and administrative services to a private counseling program where his subordinates referred probationers). Here, the Petitioner would like to engage in private part-time employment as a domestic violence class facilitator at Vantage Point. He represents that this private employment will occur on his own time, after normal DOC work hours, and without the use of DOC resources or equipment. He further represents that he would not participate in any activities, assessments, paperwork or discussions involving any individuals currently in his DOC caseload. He states that, during the course of his private employment at Vantage Point, he will not reveal any confidential information that he obtained as part of his public employment. Finally, he represents that, given that his caseload is limited to sex offender probationers, in the unlikely event he is assigned a probationer that required a referral to a batterer intervention program, he would recuse from participating in such a referral for the duration of his employment at Vantage Point. Based upon the above representations, and consistent with prior advisory opinions, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from working in his private capacity as a domestic violence class facilitator at Vantage Point. 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 Rhode Island Department of Corrections policy, or 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. 2014-6 A.O. 2013-22 A.O. 2006-8 A.O. 2001-77 A.O. 96-72 Keywords: Private Employment [1] There are seven certified batterer intervention programs currently listed on the Rhode Island Supreme Court’s website: http://www.rivpn.org/batterers.htm#openinnewwindow. [2] Rhode Island General Laws § 12-29-5(a) provides: Every person convicted of or placed on probation for a crime involving domestic violence or whose case is filed pursuant to § 12-10-12 where the defendant pleads nolo contendere, in addition to any other sentence imposed or counseling ordered, shall be ordered by the judge to attend, at his or her own expense, a batterer's intervention program appropriate to address his or her violent behavior; provided, however, that the court may permit a servicemember [sic] or veteran to complete any court-approved counseling program administered or approved by the Veterans’ Administration. This order shall be included in the conditions of probation. Failure of the defendant to comply with the order shall be a basis for violating probation and/or the provisions of § 12-10-12. This provision shall not be suspended or waived by the court. See also § 12-29-5.2 (listing the standards for batterer intervention programs).