Advisory Opinion No. 2016-42 Rhode Island Ethics Commission Advisory Opinion No. 2016-42 Approved: December 6, 2016 Re: Christopher B. Frenier QUESTION PRESENTED: The Petitioner, a 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 prohibits him from accepting part-time, private employment with a private sex offender counseling program. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Probation and Parole Supervisor for the Rhode Island Department of Corrections, a state employee position, is not prohibited by the Code of Ethics from accepting part-time, private employment with a private sex offender counseling program. The Petitioner is a Probation and Parole Supervisor with the Rhode Island Department of Corrections (“DOC”). The Petitioner represents that he is the only Probation and Parole Supervisor for the Newport area. The Petitioner supervises three probation and parole officers, one of whom carries a domestic violence specific caseload and two of whom carry generic caseloads. The Petitioner states that none of his subordinate officers handle or will handle sex offender-specific caseloads. The Petitioner represents that in addition to his supervisory position in Newport, he is also the supervisor assigned to oversee a newly launched DOC program where a risk assessment unit reviews certain cases forwarded by the Court, assesses them based on risk factors, and assigns them to probation and parole officers within the assessment unit. The Petitioner states that the risk assessment unit is located in Cranston and consists of two assessment officers who do not carry any caseload and two probation and parole officers who carry medium/high risk and low risk caseloads. The Petitioner represents that sex offender cases are not and will not be assigned to this unit as the assessment tools used are not valid for sex offender assessment. Recently, the Petitioner requested and received an advisory opinion as to whether the Code of Ethics prohibited him from continuing his private employment as a facilitator of a batterers’ intervention program at Rhode Island Batterers Intervention Program (“RIBIP”), given his promotion from probation and parole officer to probation and parole supervisor. A.O. 2016-33. The Ethics Commission determined that the Petitioner was prohibited from continuing his part-time, private employment with RIBIP following his promotion because his subordinate officers referred probationers to RIBIP and other batterers’ intervention counseling programs. The Ethics Commission reasoned that the Petitioner was ultimately responsible for his subordinate officers’ caseload work, including referrals to the Petitioner’s private employer. Furthermore, the Ethics 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. The Petitioner now wishes to accept part-time, private employment with Michael Stevens (“Mr. Stevens”) of Behavioral Health and Medicine Associates (“BHMA”), co-facilitating sex offender group counseling and conducting sex offender assessments in Providence. The Petitioner represents that BHMA provides exclusively sex offender counseling and has offices in Newport, Wakefield and Providence. The Petitioner explains that Mr. Stevens assisted him with a graduate project while the Petitioner was completing his graduate education and they have known each other for the past ten years. The Petitioner points out that sex offenders needing counseling are assigned directly to probation officers with sex offender-specific caseloads, who are responsible for referring the sex offenders to counseling. The Petitioner further explains that, after a period of time, certain sex offenders may be “stepped down” to supervision by probation officers with generic caseloads. Probation officers with generic caseloads, like the ones supervised by the Petitioner, do not refer “stepped down” sex offenders to sex offender counseling as these sex offenders have either already been referred to counseling or have completed it. The probation officers supervising the “stepped-down” sex offenders follow plans established initially by the probation officers with sex offender-specific caseloads. The Petitioner represents that if any community, police, or non-compliance concerns arise regarding a “stepped down” sex offender, then the probation officer overseeing such sex offender would recommend to his/her supervisor that the probationer be transferred back to a probation officer with a sex offender-specific caseload. In turn, the supervisor would review the case and if a legitimate concern exists the case would be transferred back to a probation officer with a sex offender-specific caseload. The Petitioner states that his subordinate officers in Newport currently oversee three “stepped-down” probationers who are completing counseling with Mr. Stevens in his Wakefield office. The Petitioner represents that these “stepped-down” probationers were referred to Mr. Stevens seven years ago by a probation officer with a sex offender-specific caseload. Given this set of facts, the Petitioner request an advisory opinion as to whether he may accept, in his private capacity, part-time employment with BHMA. 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 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). The Commission has issued a number of advisory opinions in which it has given approval specifically for DOC employees to accept outside employment given that the employees did not participate in any activities involving individuals in their DOC caseloads, including referrals to their private employers, and that all such work was performed on their own time and without the use of public resources or confidential information obtained as part of their public employment. See A.O. 2016-7 (opining that a probation and parole training officer and intern/volunteer coordinator at DOC could continue working at RIBIP as a facilitator, 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. 2015-38 (opining that a DOC probation and parole officer was not prohibited by the Code of Ethics from accepting private employment as a batterers intervention program facilitator provided that his caseload was limited to sex offender probationers, that it was unlikely that he would be assigned a probationer requiring a referral to a batterers intervention program, and that his private employment would occur on his own time, without public resources or confidential information obtained from his DOC employment). Contrast 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 facts represented in the instant request for an advisory opinion are distinguishable from those raised in Advisory Opinion 2016-33, the Petitioner’s prior request, where he was employed by RIBIP to facilitate domestic violence counseling and at the same time his subordinate officers referred probationers to RIBIP to receive such counseling. In this new request for advice, the Petitioner wishes to engage in part-time, private employment facilitating sex offender counseling with a different employer, BHMA. The Petitioner represents that his subordinate officers handling generic caseloads never make referrals to sex offender counseling. Although his subordinates are assigned three “stepped-down” sex offenders, such offenders have already been referred to counseling prior to the assignment. The Petitioner states that all his work will be performed on his own time, without the use of public resources or equipment, and he will not use his public employment to recruit or obtain potential clients. Furthermore, although it is unlikely that any of the “stepped-down” sex offenders currently supervised by the Petitioner’s subordinate officers would be completing counseling in Providence, to avoid any conflicts with his public employment, the Petitioner represents that he will not participate in any activities, including individual or group counseling, assessments, paperwork or discussions, involving individuals in his DOC subordinates’ caseload. The Petitioner states that if any unforeseen changes occur within his DOC employment that would present a conflict of interest under the Code of Ethics, he will either file a request for an advisory opinion or resign from BHMA. Based on all the representations above, the Commission is satisfied that sufficient separation exists between the Petitioner’s duties as a DOC probation and parole officer supervisor and his part-time work at BHMA. In particular, the Petitioner is not taking actions while at DOC to financially benefit himself or BHMA, and his private employment at BHMA does not appear to impair his independence of judgment or induce him to disclose confidential information gained in the course of his duties at DOC. Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from engaging in part-time, private employment with a private sex offender counseling program. 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) Commission Regulation 36-14-7001 Related Advisory Opinions: A.O. 2016-33 A.O. 2016-7 A.O. 2015-38 A.O. 2006-8 Keywords: Private Employment