Advisory Opinion No. 2018-33 Rhode Island Ethics Commission Advisory Opinion No. 2018-33 Approved: June 5, 2018 Re: Joseph P. da Silva, Ph.D., AIA, REFP QUESTION PRESENTED: The Petitioner, a School Construction Coordinator and Architectural Design Reviewer for the Rhode Island Department of Elementary and Secondary Education, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from working, on his own time and in his private capacity, for a private architectural firm in Massachusetts. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a School Construction Coordinator and Architectural Design Reviewer for the Rhode Island Department of Elementary and Secondary Education, a state employee position, is not prohibited by the Code of Ethics from working, on his own time and in his private capacity, for a private architectural firm in Massachusetts. The Petitioner is a School Construction Coordinator and Architectural Design Reviewer with the Rhode Island Department of Elementary and Secondary Education (“RIDE”). He explains that RIDE has the authority to implement and administer the RIDE School Construction Regulations on behalf of the Council on Elementary and Secondary Education (“CESE”), including making recommendations to the CESE on project approvals, disbursing school housing aid for approved projects, and monitoring compliance with conditions of project approval set by the CESE. The Petitioner represents that his duties and responsibilities include monitoring school construction projects for regulatory compliance, reviewing district capital improvement and asset protection plans, and preparing and monitoring RIDE’s annual capital budget. The Petitioner states that he has accepted a part-time, private employment as a sustainability consultant with Raymond Design Associates, Inc. (“Raymond Design”), a private Massachusetts-based architectural firm which provides design services on residential, commercial, municipal, and educational projects outside of the State of Rhode Island. The Petitioner represents that all the work is performed on his own time, without the use of any RIDE resources, and that he in no way uses his public position to recruit clients for his private employer. Cognizant of the Code of Ethics, the Petitioner seeks the guidance of the Ethics Commission as to whether the Code of Ethics prohibits him from working as a sustainability consultant for Raymond Design in Massachusetts. No person subject to the Code of Ethics shall engage in any business, employment, transaction or professional activity which 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 occurs if he has reason to believe or expect that he, any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity or employment. Section 36-14-7(a). The public official or employee is further prohibited from using his public office or position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate or a family member. See 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 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). In the past, the Ethics Commission has consistently opined that public officials and employees are not inherently prohibited from holding employment that is secondary to their primary public employment or positions subject, however, to certain restrictions and provided that their private employment would neither impair their independence of judgment nor create an interest in substantial conflict with their public duties. See, e.g., A.O. 2008-12 (opining that the Building Official for the Town of Little Compton may simultaneously work as a finish carpenter in the Town of Little Compton provided that he does not inspect his own work); A.O. 2003-55 (opining that the Alternate Building Official for the Town of Coventry may do work in Coventry that does not require a permit or inspection, such as cabinetry work, painting, and tile work, provided that he would not be inspecting projects for which he provided services); A.O. 99-39 (opining that the Alternate Building Official for the Town of East Greenwich may provide architectural design services for private clients within East Greenwich, provided that he recuses from participation in any review or inspection of projects in which he is involved and that his private employment does not require him to appear before the Building Official). Furthermore, while in the past the Ethics Commission has opined that some public officials and employees may not hold secondary private employment within the same jurisdiction in which they publicly serve because of a substantial conflict between their public and private employment, the Commission has consistently allowed such officials and employees to engage in secondary employment that is outside of their official public jurisdiction. In Advisory Opinion 2016-16, for example, the Ethics Commission determined that an Environmental Health Food Specialist for the Rhode Island Department of Health, Office of Food Protection is not prohibited by the Code of Ethics from working as a food safety consultant for food establishments in Connecticut and/or Massachusetts, provided that: she does not perform such work for establishments that operate within the State of Rhode Island; she performs such work on her own time and without the use of public resources or equipment; she does not use her public employment to recruit or obtain potential clients; and she declines to accept any private consulting work for any food establishments in Massachusetts and/or Connecticut owned by the same person(s) who own a food establishment within her assigned region of public employment in Rhode Island. See also A.O. 2009-31 (opining that the Chief Plumbing Investigator for the Rhode Island Department of Labor and Training, who is also licensed as a master plumber and pipefitter, is prohibited from working as a plumber and pipefitter in the State of Rhode Island, but is not prohibited from performing such work outside of the State of Rhode Island, provided that: 1) such work is performed on his own time and without the use of public resources; and 2) he does not use his state position to recruit potential clients); A.O. 2001-46 (opining that a Bristol Police Officer assigned to the Detective Division may assist a private investigator in reviewing a criminal matter under the jurisdiction of the Massachusetts District Attorney’s Office, provided that he has no involvement with matters subject to the Bristol Police Department’s official jurisdiction); A.O. 2000-93 (opining that investigative employees of the Department of Labor and Training could accept or maintain private employment in the professional fields for which they had investigative, licensing and enforcement responsibilities provided that: 1) they did not perform such work within the State of Rhode Island; 2) they performed such work on their own time and without the use of public resources; and 3) they did not use their State positions to recruit potential clients). In the present matter, based on all the representations above, it is the opinion of the Ethics Commission that there is no evidence that the Petitioner’s employment with the Massachusetts-based architectural firm would either impair his independence of judgement or create an interest in substantial conflict with his public duties at RIDE. Accordingly, the Code of Ethics does not prohibit the Petitioner from working part-time, in his private capacity as a sustainability consultant at Raymond Design in Massachusetts, provided that all the work is performed on his own time and without the use of public resources or confidential information obtained as part of his state employment at RIDE. The Petitioner is cautioned to seek further guidance from the Ethics Commission if any changes occur within his RIDE employment that would present a conflict of interest under the Code of Ethics. 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: A.O. 2016-16 A.O. 2009-31 A.O. 2008-12 A.O. 2003-55 A.O. 2001-46 A.O. 2000-93 A.O. 99-39 Keywords: Private Employment