Advisory Opinion No. 2016-33 Rhode Island Ethics Commission Advisory Opinion No. 2016-33 Approved: September 27, 2016 Re: Christopher B. Frenier QUESTION PRESENTED : The Petitioner, who was recently promoted to Probation and Parole Supervisor for the Rhode Island Department of Corrections, a state employee position, requests an advisory opinion regarding whether the Code of Ethics permits him to continue working in his private capacity as a facilitator of a batterer s intervention program at Rhode Island Batterers Intervention Program . RESPONSE : It is the opinion of the Rhode Island Ethics Commission that the Petitioner, who was recently promoted to Probation and Parole Supervisor, a state employee position, is prohibited by the Code of Ethics from working in his private capacity as a facilitator of a batterer s intervention program at Rhode Island Batterer s Intervention Program. The Petitioner represents that he was a full-time Probation and Parole Officer with the Rhode Island Department of Corrections ( “ DOC ” ) from 2003 until Ju ne 26, 2016, when he wa s promoted to the position of Probation and Parole Supervisor. The Petitioner explains that he is the only Probation and Parole Supervisor for the Newport area and that he supervises three probati on officers , one of whom primarily handles domestic violence offenders who are required to receive counseling . The Petitioner further informs that the DOC is launching a pilot program where an assessment unit will review certain cases forwarded by the Court, asses them based on risk factors , and assign them to probation and parole officers in the pilot program . The Petitioner represents that in addition to his supervisory position in Newport, he will be the Supervisor assigned to oversee the pilot program. The Petitioner states that the unit will be located in Cranston, will consist of four probation and parole officers under his supervision , and that the caseload assigned to those officers may include domestic violence offenders who are required to receive counseling . The Petitioner states that since 2003 he has been privately employed by Rhode Island Batterer s Intervention Program (“ RIBIP ”) [1] as the facilitator of a twenty-week , court-mandated batterer s intervention program for persons convicted of, or on probation for, a domestic violence offense. See R.I. Gen. Laws § 12-29-5 . The batterer s intervention program is conducted in groups of peers under the leadership of professional f acilitators such as the Petitioner. The referral to a particular batterers intervention program is made by a probation and parole officer, based on a discussion between the offender and the officer aimed at determining which counseling program is most suitable to the offender. The Petitioner informs that the only program offering domestic violence counseling in the Newport area is his private employer, RIBIP . T he Petitioner further explains that , in order to avoid any conflicts of interest , since becoming a supervisor he is no longer facilitating batterers intervention programs in Newport . Earlier this year, prior to the Petitioner’s promotion to Probation and Parole Supervisor, the Petitioner requested an advisory opinion regarding whether the Code of Ethics prohibited him from working in his private capacity as a facilitator of a batterers intervention program at RIBIP given his then - employment as a probation and parole officer with the DOC . The Ethics Commission opined that the Petitioner was not prohibited by the Code of Ethics from working in his private capacity as a facilitator at RIBIP based on his representations that his private employment would occur on his own time, without the use of public resources, equipment, or confidential information obtained as par t of his public employment. Of particular significance to this update d opinion was the Petitioner’s prior representation that his caseload did not include , and was unlikely to ever include , a probationer who required a referral to a batterers intervention program. A.O. 2016-4. The Petitioner also expressly represented that he would not make any referral s to RIBIP. The Petitioner is now seeking updated guidance as to whether he may continue working as a facilitator of a batterers intervention program at RIBIP , given that his new position as a Probation and Parole Supervisor for the DOC includes the supervision of probation officers with domestic violence caseload s requiring referral to a batterers intervention programs, including RIBIP. Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A public 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 virtue of the public official ’ s activity, to the official, a family member, a business associate or employer. Section 36-14-7(a); Regulation 7001. The Code of Ethics defines a business associate as an individual or business entity joined with an official to achieve a common financial objective. See Sections 36-14-2(3) & (7). Furthermore, under section 36-14-5(b) of the Code of Ethics, the Petitioner may not accept other employment which would impair his independence of judgment as to his official duties or require him to disclose confidential information acquired in the course of his official duties. Additionally, the Code of Ethics prohibits the Petitioner from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, a business associate or employer. Section 36-14-5(d). In series of advisory opinions issued to DOC employees, including the Petitioner as discussed above, the Commission has given approval to accept outside employment. For example, in Advisory Opinion 2016-7, the Commission opined that a Probation and 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; and A.O. 2016-4 (opining in three substantially similar opinions that DOC probation and parole officers could continue private employment at RIBIP). In contrast, under facts more similar to those presented here , in Advisory Opinion 2006-8 the Commission determined that a Department of Corrections Probation and Parole Supervisor was prohibited from accepting a part-time position to provide counseling and administrative services with a private counseling program because his subordinate officers referred probationers to the program . The Commission reasoned that the Petitioner was ultimately responsible for his subordinate officers ’ caseload work, including referrals to the Petitioner ’ s private employer. Furthermore, the Commission opined that the DOC chain of command positioned him to be influential and closely associated with the work conducted by his subordinates on their caseloads , and that the caseloads of his subordinate officers were essentially his caseloads given his supervisory authority over them. Here, similar to the facts presented in Advisory Opinion 2006-8, the Petitioner is now a DOC Supervisor, not a DOC Probation and Parole Officer as was the situation in his prior advisory opinion . As a Probation and Parole Supervisor, the Petitioner represents that he oversees the work of his subordinate officers and that these officers ’ work includes referring offenders to RIBIP and similar programs . The Petitioner represents that he is not directly involved in such referrals and has no caseload of his own. Nonetheless, the Commission emphasizes that the Petitioner remains ultimately responsible for his subordinate officers ’ caseload work and that the DOC chain of command positions him to be influential and closely associated with the work conducted by his subordinates on their caseloads . Furthermore, the Petitioner ’ s employment with RIBIP is not completely separate and distinct from his DOC responsibilities because his DOC subordinates would be providing work to his private employer, RIBIP, through their referrals. RIBIP will be financially impacted by referrals the Petitioner ’ s subordinate officers make to RIBIP or its competitors, implicating sections 36-14- 5(a) & (d ) of the Code of Ethics . Furthermore , t he Petitioner ’ s employment at RIBIP raises concerns under section 36-14- 5(b) about the Petitioner ’ s independence of judgment in his official capacity as a DOC Supervisor . Accordingly, after considering all of the representations made herein, as well as our review of past advisory opinions and the provisions of the Code of Ethics, including sections 36-14-5(a), 5(b) and 5(d) , it is the opinion of the Ethics Commission that the Petitioner is prohibited by the Code of Ethics from working in his private capacity as a facilitator of a batterers 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 other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations : § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-7(a) Commission Regulation 7001 Related Advisory Opinions : A.O. 2016-7 A.O. 2016-6 A.O. 2016-5 A.O. 2016-4 A.O. 2006-8 Other Related Authority § 12-29-5 Keywords : Private employment [1] RIBIP is a private, for-profit corporation.