Advisory Opinion No. 2018-32 Rhode Island Ethics Commission Advisory Opinion No. 2018-32 Approved: June 5, 2018 Re: Wendy Allmendinger 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 at Rhode Island Batterers 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 prohibited by the Code of Ethics from working in her private capacity as a facilitator at Rhode Island Batterers Intervention Program. The Petitioner is a probation and parole officer with the Rhode Island Department of Corrections (“DOC”). She represents that she works full-time at the Woonsocket/Northern Rhode Island Regional Probation and Parole Office. She states that she has been employed at DOC since December 2017 and currently supervises a caseload of 93 domestic violence offenders who live in Woonsocket and the surrounding towns. She represents that the offenders, all of whom are on probation, are required by the court to attend and complete a batterers intervention program. The Petitioner states that her duties at the DOC include referring the offenders to the batterers intervention programs available throughout the state. She informs that she presents each offender with a statewide calendar of all the programs and the offender selects the program that best fits his/her schedule. The Petitioner represents that she only directs an offender to a particular program in limited circumstances. For example, she explained that if an offender has a voucher issued by the Department of Children Youth and Families to pay for the classes, she informs the offender that only Rhode Island Batterers Intervention Program (“RIBIP”) accepts said vouchers. She also stated that if an offender cannot afford even the lowest program rate and wants to perform community service in order to qualify for a further reduction, she advises him/her that only Gateway Healthcare accepts this arrangement. The Petitioner further informed that if an offender requires a Spanish-speaking class, she explains that only RIBIP offers classes in Spanish. The Petitioner states that, once an offender selects a program, she prepares the paperwork and submits it to the appropriate batterers intervention program provider. The Petitioner informs that she receives weekly updates from the batterers intervention program providers with regard to each offender, his/her attendance, and any behavioral issues or other concerns regarding the offender. She states that, if a program no longer meets the offender’s needs, she assists him/her in finding another program that is suitable based on location, schedule, and cost. The Petitioner states that she would like to accept part-time employment at RIBIP as a facilitator of classes in its East Providence office. She represents that her work at RIBIP would not interfere with her official duties as a probation and parole officer at DOC and that she would perform all work for RIBIP outside her normal workday hours and without the use of public resources. She informs that she would not receive any financial compensation for referring offenders to RIBIP. The Petitioner further informs that she has recently sought approval from the Associate Director of Probation and Parole at DOC and was advised that she could work as a facilitator at RIBIP as long as she does not work in groups that include offenders she supervises as a probation and parole officer, and that she does not refer persons on her DOC caseload to her private employer. Cognizant of the Code of Ethics, the Petitioner requests a formal advisory opinion as to whether she may accept part-time work as a facilitator at RIBIP. Under the Code of Ethics, a public official or employee 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 a public official or employee 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 or employee 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 or employee 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 for DOC employees to accept outside employment. For example, in Advisory Opinion 2015-38, the Commission opined that a DOC probation and parole officer was not prohibited by the Code of Ethics from working in his private capacity as a facilitator of a batterer intervention program at Vantage Point 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. 2016-4 (opining that a probation and parole officer was not prohibited by the Code of Ethics from working as a part-time facilitator at a batterers intervention program provided that he did not participate in any activities involving individuals in his DOC caseload, he did not reveal any confidential information in his private employment that he obtained as part of his public employment, he worked on his own time and did not use any DOC resources for his private employment, and if he was assigned a domestic violence offender, he would refer him/her to one of the other court-approved batterer intervention programs in the state); and 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 located in Warwick, based on his representations, inter alia, that the probationers he supervised were generally located in Washington County and, therefore, were rarely referred to Bridgemark’s office in Kent County, and that he would transfer any probationer who relocated to the Warwick area to a probation officer in Kent County). Contra A.O. 2016-33 (opining that a DOC Probation and Parole Supervisor was prohibited from continuing his part-time, private employment with RIBIP because his subordinate officers referred probationers to RIBIP and the petitioner was ultimately responsible for his subordinate officers’ caseload work, including referrals to the Petitioner’s private employer). Unlike the petitioners in the above-cited prior advisory opinions whose caseloads included offenders who did not require and were unlikely to require referrals to batterer intervention programs, here, the Petitioner’s caseload specifically includes domestic violence offenders requiring referrals to batterer intervention programs. RIBIP will be financially impacted, either benefiting or suffering monetary loss, by referrals that the Petitioner makes to it or to its competitors, thereby implicating section 5(a) and (d) of the Code of Ethics. Furthermore, given that the Petitioner’s caseload is comprised solely of domestic violence offenders, the Petitioner’s employment at RIBIP raises concerns under section 5(b) regarding her independence of judgment in her official capacity as a DOC probation and parole officer. Accordingly, after considering all of the representations made herein, as well as our review of past advisory opinions, it is the opinion of the Ethics Commission that the Petitioner is prohibited by the Code of Ethics from accepting work in her 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: § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-7(a) Related Advisory Opinions: 2016-33 2016-4 2015-38 2013-22 Keywords: Private employment