Advisory Opinion No. 2016-20 Rhode Island Ethics Commission Advisory Opinion No. 2016-20 Approved: June 7, 2016 Re: Andrea Hammerschmidt QUESTION PRESENTED: The Petitioner, a Senior Word Processing Typist at the Rhode Island Department of Corrections, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from working in her private capacity as a facilitator at Rhode Island Batterer’s Intervention Program. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Senior Word Processing Typist at the Rhode Island Department of Corrections, a state employee position, is not prohibited by the Code of Ethics from working in her private capacity as a facilitator at Rhode Island Batterer’s Intervention Program, based upon her representations below and provided that all such work is performed on her own time and without the use of public resources, equipment or confidential information obtained as part of her public employment. The Petitioner is a Senior Word Processing Typist for the Rhode Island Department of Corrections (“DOC”). She states that she has held this position since August 2013. She represents that she works full-time from 8:30 a.m. to 4:00 p.m. at the Probation and Parole Office located at the Kent County Courthouse. She states that her hours are standard and she does not work past 4:00 p.m. She informs that her duties include data entry, other secretarial services and acting as a receptionist for the office. She states that her interactions with offenders are limited to asking them to sign-in upon arrival and notifying their probation/parole officer that they have arrived. In her private capacity, the Petitioner represents that she would like to begin part-time employment at Rhode Island Batterer’s Intervention Program (“RIBIP”)[1] as a facilitator of twenty-week, court-mandated batterer intervention programs which persons convicted of, or on probation for, a domestic violence offense are generally required to complete.[2] She states that she would work at RIBIP in the evenings, beginning at 5:00 p.m., or on the weekends. She informs that she notified her immediate supervisor of her potential private employment and she was advised to seek an advisory opinion from the Ethics Commission. Cognizant of the Code of Ethics, the Petitioner states that while at RIBIP she will take the following steps to avoid any conflicts of interest. First, she represents that she will not reveal any confidential information that she obtained as part of her public employment during the course of her private employment at RIBIP. Second, she represents that her private employment, including training hours, will occur on her own time, outside of her DOC hours, and without the use of any DOC resources or equipment. Finally, she states that her current duties at DOC do not involve the supervision of any offenders or any probation/parole officers. Therefore, she represents that she would not be in a position to refer anyone to RIBIP for a batterer’s intervention class or to supervise anyone that referred offenders to such a class. 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). The Commission has issued a number of analogous advisory opinions in which it has given approval specifically for DOC employees to accept outside employment. For example, in Advisory Opinion 2016-7, the Commission opined that the Probation & Parole Training Officer and Intern/Volunteer Coordinator at DOC could continue working at RIBIP as a facilitator for the batterer’s intervention program, given that her official duties did not involve the supervision of any offenders or probation/parole officers, or the referral of anyone to RIBIP classes, and her private employment occurred on her own time and without the use of any DOC resources or equipment. See also A.O. 2016-6, A.O. 2016-5, A.O. 2016-4 (opining in three substantially similar opinions that DOC probation and parole officers could continue private employment at RIBIP); A.O. 2015-38 (opining that a DOC probation and parole officer’s proposed private employment as a batterer’s intervention program facilitator at Vantage Point, Inc., was not prohibited by the Code based upon his representations that his private employment would occur on his own time, without public resources or confidential information obtained from his DOC employment, and that, because his caseload was limited to sex offender probationers, it was unlikely that he would be assigned a probationer that required a referral to a batterer intervention program); 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). The Petitioner in the present matter would like to engage in part-time employment as a facilitator of a batterer intervention program at RIBIP. The Code of Ethics prohibits the Petitioner from using her public position to financially benefit herself or her private employer, and from accepting private employment that impairs her independence of judgment as to her official DOC duties or induces her to disclose confidential information acquired by her at DOC. Based upon the representations noted above, the Commission is satisfied that sufficient separation exists between the Petitioner’s duties as a DOC Senior Word Processing Typist and her proposed part-time work at RIBIP, that she would not take actions while at DOC to financially benefit herself or RIBIP, and that her private employment at RIBIP would not impair her independence of judgment or induce her to disclose confidential information gained in the course of her duties at DOC. Accordingly, 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 her private capacity as a facilitator of a batterer intervention program at RIBIP. 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. 2016-7 A.O. 2016-6 A.O. 2016-5 A.O. 2016-4 A.O. 2015-38 A.O. 2013-22 A.O. 2006-8 A.O. 2001-77 Keywords: Private Employment [1] RIBIP is a private, for-profit corporation. [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).