Advisory Opinion No. 2016-4 Rhode Island Ethics Commission Advisory Opinion No. 2016-4 Approved: January 12, 2016 Re: Christopher B. Frenier 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 facilitator of a batterer intervention program at Rhode Island Batterer’s Intervention Program. 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 facilitator of a batterer intervention program at Rhode Island Batterer’s Intervention Program, based upon his representations below and provided that all such work is performed on his own time and without the use of public resources, equipment 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 and Parole Office. He states that he has been employed at DOC since 2003, initially working with probationers and more recently working with parolees. He informs that he has a caseload of approximately thirty to forty offenders who have been granted parole by the Rhode Island Parole Board (“Parole Board”).[1] He represents that his caseload includes offenders that have committed a variety of felonies. He states that approximately half of the offenders in his caseload are monitored by a tracking bracelet and many are required to undergo treatment for mental illness or substance abuse. The Petitioner states that in addition to his regular work hours, he is available by phone at all times to answer questions from correctional officers in case one of his parolees is arrested or in the event that an emergency arises involving one of his parolees. The Petitioner informs that the Parole Board evaluates the conditional early release of incarcerated offenders who have been sentenced to imprisonment for a term of more than six months. He states that parole eligibility is determined by statute and usually occurs when an offender has served at least one third of his or her sentence. He advises that, if paroled, the offender is assigned a parole officer such as himself shortly before release. He states that his duties include investigating a parolee’s home plan and employment prior to release, and supervising the parolee upon release to ensure compliance with the terms and conditions set by the Parole Board until the expiration of what would have been the parolee’s remaining jail sentence. In his private capacity, the Petitioner states that he has been employed by the Rhode Island Batterer’s Intervention Program (“RIBIP”)[2] since 2003 as a facilitator of a twenty-week court-mandated batterer intervention program which persons convicted of, or on probation for, a domestic violence offense are generally required to complete.[3] He represents that he works on Wednesday nights at RIBIP’s Johnston location. He states that his work at RIBIP does not interfere with his official duties as a probation and parole officer. He informs that if he receives a call regarding a parolee while at RIBIP, he would take a break from teaching the batterer intervention class to handle the matter and, if necessary, he would leave RIBIP to respond to a DOC matter. However, he states that it is very rare that his on-call work requires anything more than taking a few minutes to speak to a correctional officer on the phone. He informs that prior to starting at RIBIP he sought approval from his then supervisor at DOC, who advised him that the Ethics Commission had issued a similar advisory opinion to another probation and parole officer. He states that he was advised by his supervisor that he could work at RIBIP as long as he did not work in groups that included people he supervised as a probation and parole officer and that he did not refer persons on his DOC caseload to his private employer. He represents that he was recently directed by DOC Administration and Legal Counsel to seek an advisory opinion from the Ethics Commission in order to continue with his part-time work at RIBIP. Cognizant of the Code of Ethics, the Petitioner states that while at RIBIP he has taken, and will continue to take, the following steps to avoid any conflicts of interest. First, he represents that in his private employment he has not participated in, and would not participate in, any activities, assessments, paperwork or discussions involving any individuals currently in his DOC caseload. Second, he states that he has not revealed, and would not reveal, any confidential information that he obtained as part of his public employment during the course of his private employment at RIBIP. Third, he represents that his private employment occurs on his own time, outside of his DOC hours, and he does not use any DOC resources or equipment for his private employment. Finally, he informs that, because other parole officers have domestic violence specific caseloads, it is unlikely that he would be assigned a domestic violence offender. However, he represents that he would not refer any parolee to RIBIP for the duration of his employment at RIBIP. He states that, although unlikely, if such a referral was required he would refer a parolee on his caseload to one of the other court-approved batterer intervention programs in the state.[4] 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. The Commission most recently considered a similar fact pattern in Advisory Opinion 2015-38, in which a probation and parole officer, who was assigned a sex offender specific caseload of probationers, inquired whether he could work in his private capacity at Vantage Point, Inc., as a facilitator of a court-mandated batterer intervention program. There, the Commission opined that the petitioner’s proposed private employment was not prohibited by the Code of Ethics 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. See also 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). 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, having been asked to seek this advisory opinion by DOC, would like to continue to engage in private part-time employment as a facilitator of a batterer intervention program at RIBIP. In questions of proposed private employment, the Commission seeks representations from the Petitioner to establish that his private employment is not in violation of the prohibitions contained in section 36-14-5. The Code of Ethics prohibits the Petitioner from using his public position to financially benefit himself or his private employer; and from accepting private employment that impairs his independence of judgment as to his official DOC duties or induces him to disclose confidential information acquired by him at DOC. Based upon the representations above, the Commission is satisfied that sufficient separation exists between the Petitioner’s duties as a DOC probation and parole officer and his part-time work at RIBIP, that he is not taking actions while at DOC to financially benefit himself or RIBIP, and that his private employment at RIBIP does not impair his independence of judgment or induce him to disclose confidential information gained in the course of his 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 his 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. 2015-38 A.O. 2013-22 A.O. 2006-8 A.O. 2001-77 Keywords: Private Employment [1] See Rhode Island General Laws Chapter 8 of Title 13, entitled “Parole.” [2] RIBIP is a private, for-profit corporation. [3] 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 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). [4] Currently, there are five certified batterer intervention programs currently listed on the Rhode Island Supreme Court’s website, four of which have programs available in multiple locations throughout Rhode Island. https://www.courts.ri.gov/PublicResources/domesticviolenceunit/PDF/DVTMU-BIP.pdf (last accessed on December 30, 2015).