Advisory Opinion No. 2017-48 Rhode Island Ethics Commission Advisory Opinion No. 2017-48 Approved: October 17, 2017 Re: Joshua J. Giraldo QUESTION PRESENTED: The Petitioner, the Chief of Staff to the Mayor of the City of Central Falls, a municipal appointed position, seeks an advisory opinion as to whether the Code of Ethics prohibits him from working as an independent contractor for a public relations and communications firm. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Chief of Staff to the Mayor of the City of Central Falls, a municipal appointed position, is not prohibited by the Code of Ethics from working as an independent contractor for a public relations and communications firm, provided that all such work is performed on his own time and without the use of public resources or confidential information obtained as part of his municipal employment. The Petitioner has been the Chief of Staff to the Mayor of the City of Central Falls (“City”) since 2015. In his private capacity, he was offered a personal services contract with O’Neill and Associates, a public relations and communications firm, to conduct community outreach on behalf of one of its clients, PepsiCo, Inc. (“PepsiCo”), a multinational food, snack, and beverage corporation. The Petitioner explains that his duties would include screening various 501(c)(3) organizations in Rhode Island, Connecticut, and Massachusetts for PepsiCo grants eligibility, educating such organizations regarding mini grants available to them through PepsiCo and conducting community outreach and engagement through various community events and tours of PepsiCo’s various plants and facilities. The Petitioner represents that his private duties will require him to work fifteen to twenty hours per month and will be performed on his own time, without the use of public resources. The Petitioner states that he will not engage in any work that may involve the City, its School District or any 501(c)(3) organizations within the City. The Petitioner further represents that a provision in this regard will be included in his contract as well. The Petitioner further states that he is not aware of any specific matter currently before the City that may financially impact O’Neill and Associates or PepsiCo. Under the Code of Ethics, a public official is prohibited from accepting other employment that will either impair his independence of judgment as to his official duties or employment, or induce him to disclose confidential information acquired by him in the course of his official duties. R.I. Gen. Laws § 36-14-5(b). A public official may not participate in any matter in which he has an interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature that is in substantial conflict with the proper discharge of his duties or employment in the public interest. Section 36-14-5(a). A substantial conflict of interest exists if, for example, 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). Finally, a public official may not use his public office for pecuniary gain, other than as provided by law, for himself, a family member, employer, business associate, or a business that he represents. Section 36-14-5(d). The Commission has issued a number of advisory opinions in which it has given approval for public employees to accept outside employment provided that: a) the employees’ official duties with their agencies do not directly relate to their private employment; b) the employees complete the work outside of their normal working hours; c) the employees do not appear before their own agencies; and d) the employees do not use public resources for their outside employment. See A.O. 2016-37 (opining that a certified appraiser with the City of Providence Tax Assessor’s Office was not prohibited by the Code of Ethics from working in his private capacity as a real estate sales person, provided that all work was performed on his own time, without the use of public resources or confidential information obtained as part of his public employment, he did not use his public position to promote his private employment, and he did not list his public position as part of the advertisement of his work as a real estate salesperson); A.O. 2013-35 (opining that the Chief of the Rhode Island Bureau of Audits (“BOA”) was not prohibited from engaging in self-employment on her own time, as an income tax preparer, notwithstanding that the BOA’s Deputy Chief was supervising an audit of the Division of Taxation, given that the petitioner’s supervision was not required and she removed herself from any involvement); A.O. 2011-20 (opining that a senior planner at the Rhode Island Department of Administration, Division of Planning, was not prohibited by the Code of Ethics from working in his private capacity as a real estate salesperson, provided that all such work was performed on his own time and without the use of public resources or confidential information obtained as part of his state employment). In the present matter, based upon the Petitioner’s representations above, it does not appear that the Petitioner’s private employment will be in substantial conflict with the exercise of his public duties. Accordingly, the Code of Ethics does not prohibit the Petitioner from working in his private capacity as an independent contractor for O’Neill and Associates conducting community outreach on behalf of PepsiCo, provided that all work is performed on his own time and he does not use public resources or confidential information obtained as part of his public employment. The Petitioner is also advised to either recuse himself or seek further guidance from the Commission if matters relating to O’Neill and Associates, PepsiCo or his private employment come before him in his public position. Any notice of recusal must be filed with the Ethics Commission in accordance with section 36-14-6. 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 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-6 36-14-7(a) Related Advisory Opinions A.O. 2016-37 A.O. 2013-35 A.O. 2011-20 Keywords Private Employment Recusal