Advisory Opinion No. 2016-5 Rhode Island Ethics Commission Advisory Opinion No. 2016-5 Approved: January 12, 2016 Re: Jennifer Spellman 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 her from working in her 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 her private capacity as a facilitator of a batterer intervention program 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 probation and parole officer with the Rhode Island Department of Corrections (“DOC”). She represents that she works full-time from 8:30 a.m. to 4:00 p.m. at the Woonsocket/Northern RI Regional Probation Office.[1] She states that she presently has a generic caseload of approximately 190 adult probationers who reside in northern Rhode Island. She informs 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. She states that her duties include meeting with probationers to closely monitor progress with court-ordered conditions, filing reports with the District and Superior Courts, and providing court coverage once a week in the 6th Division District Court (Providence). In her private capacity, the Petitioner represents that she has been working part-time at the Rhode Island Batterer’s Intervention Program (“RIBIP”)[2] since October 2013 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] She states that she works at RIBIP one night per week after normal DOC work hours. She informs that prior to accepting her position at RIBIP, she notified her immediate supervisor who advised her that there had already been an Ethics Commission advisory opinion on a similar question. She states that her supervisor advised her that she could work at RIBIP as long as she did not work in a group setting with clients that she supervised on probation and she did not refer individual probationers on her caseload to a class that she facilitated. However, she represents that on November 25, 2015, she was directed by DOC Administration and Legal Counsel to obtain an advisory opinion from the Ethics Commission in order to continue her part-time employment at RIBIP. Cognizant of the Code of Ethics, the Petitioner states that while at RIBIP she has taken, and will continue to take, the following steps to avoid any conflicts of interest. First, she represents that in her private employment she has not participated in, and would not participate in, any activities, assessments, paperwork or discussions involving any individuals currently in her DOC caseload. Second, she states that she has not revealed, and would not reveal, any confidential information that she obtained as part of her public employment during the course of her private employment at RIBIP. Third, she represents that her private employment occurs on her own time, outside of her DOC hours, and she does not use any DOC resources or equipment for her private employment. Fourth, she informs that, because other probation officers have domestic violence specific caseloads, it is unlikely that she would be assigned a domestic violence offender. However, she represents that she would not refer any probationer to RIBIP for the duration of her employment at RIBIP. She states that, although unlikely, if such a referral was required she would refer a probationer on her caseload to one of the other court-approved batterer intervention programs in the state.[4] Finally, she represents that if an offender from one of her RIBIP classes was presented as a violator on her day of court coverage, she would ask one of the other probation officers at court that day to handle that violation hearing. 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. 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 her private employment is not in violation of the prohibitions contained in section 36-14-5. 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 above, the Commission is satisfied that sufficient separation exists between the Petitioner’s duties as a DOC probation and parole officer and her part-time work at RIBIP, that she is not taking actions while at DOC to financially benefit herself or RIBIP, and that her private employment at RIBIP does 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. 2015-38 A.O. 2013-22 A.O. 2006-8 A.O. 2001-77 Keywords: Private Employment [1] The Petitioner states that the Woonsocket/Northern RI Regional Probation Office consists of: four full-time probation officers assigned generic caseloads; two full-time probation officers assigned domestic violence specific caseloads; one full-time probation officer assigned a sex offender specific caseload; one part-time probation officer assigned a sex offender specific caseload; and one part-time parole officer. [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).