Advisory Opinion No. 2018-44 Rhode Island Ethics Commission Advisory Opinion No. 2018-44 Approved: July 17, 2018 Re: Anthony M. Pesare QUESTION PRESENTED: The Petitioner, the Chief of the Middletown Police Department, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from working, in his private capacity, as a part-time instructor with BlueAid Consulting, Inc., teaching a course in Mental Health First Aid for Public Safety. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Chief of the Middletown Police Department, a municipal appointed position, is not prohibited by the Code of Ethics from working, in his private capacity, as a part-time instructor with BlueAid Consulting, Inc., teaching a course in Mental Health First Aid for Public Safety. The Petitioner is the Chief of the Middletown Police Department (“Police Department”). He represents that he is a certified instructor in Mental Health First Aid for Public Safety, an eight-hour course that is taught to police officers, first responders, correctional officers, and public safety audiences. He explains that the course provides officers with response options to help them de-escalate incidents and better understand mental illness so the officers can respond to mental health related calls appropriately without compromising safety. The Petitioner states that the course is taught in accordance with a national curriculum and that the officers receive the same training regardless of where they attend the course. The Petitioner notes that he has previously taught the course for the Rhode Island Municipal Police Training Academy and the Smithfield Police Department without receiving compensation. Now, he has the opportunity to co-present the course with Joseph Coffey, the owner of BlueAid Consulting, Inc. (“BlueAid Consulting”)[1], for which he would be compensated by BlueAid Consulting between $400 and $450 depending on the number of attendees. The Petitioner further informs that BlueAid Consulting is nationally certified and presents the course throughout New England, including Rhode Island. The Petitioner explains, however, that he and Joseph Coffey will present the course through the New England State Police Information Network, Inc. (“NESPIN”)[2] in Franklin, Massachusetts. He states that his private employment would occur on his own time, without the use of public resources or equipment. The Petitioner explains that because the course is now mandated under state law it is taught to police officers as part of their basic training at the Police Academy. However, the Petitioner explains that because the course is a recent requirement, there are about 14 police officers within the Police Department who need to be certified. The Petitioner states that there are 3 certified instructors, including himself, within the Police Department, who will provide an in-house training at no cost to those police officers who need it. He notes that a police officer need only be certified once and no further recertification is required. The Petitioner explains that there are entities, such as BlueAid Consulting, NESPIN and Bradley Hospital, or individual instructors in and outside Rhode Island, that provide the course for a fee, which would normally be paid by the Town of Middletown. He further represents that he will not send any of the police officers within the Police Department to a paid training, his normal practice is to either provide in-house training or ask them to attend a course available free of charge through the Municipal Police Training Academy. Based on this set of facts the Petitioner seeks the guidance of the Ethics Commission regarding whether the Code of Ethics prohibits him from working, in his private capacity, as a part-time instructor with BlueAid Consulting, teaching a course of Mental Health First Aid for Public Safety through the New England State Police Information Network in Massachusetts. 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); Commission Regulation 7001. The Code of Ethics defines a business associate as an individual or business 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). 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. 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.); 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 doesn’t 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 recuse 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). In contrast, in Advisory Opinion 2016-33 the Ethics Commission determined 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. See also 2018-32 (opining that a probation and parole officer at the Rhode Island Department of Corrections was prohibited by the Code of Ethics from working in her private capacity as a facilitator at Rhode Island Batterers Intervention Program, given that her caseload specifically includes domestic violence offenders requiring referrals to batterer intervention programs); 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). Here, the Petitioner represents that although there are Mental Health First Aid for Public Safety courses available for a fee, including one through BlueAid Consulting, he will not recommend that police officers within his Police Department attend such courses, given that there are 3 certified instructors within the Police Department available to provide free in-house training, and there are free trainings available through the Municipal Police Training Academy. Accordingly, after considering all of the representations made herein, as well as the review of past advisory opinions and the provisions of the Code of Ethics, including section 36-14-5(a), (b) and (d), it is the opinion of the Ethics Commission that there is no evidence that the Petitioner’s part-time employment as an instructor with BlueAid Consulting, to co-present a course in Mental Health First Aid for Public Safety, through the New England State Police Information Network would either impair his independence of judgement or create an interest in substantial conflict with his public duties as the Chief of the Middletown Police Department. All the work, however, has to be performed on his own time and without the use of public resources or confidential information obtained as part of his municipal employment as the Chief of the Middletown Police Department. The Petitioner is cautioned to seek further guidance from the Ethics Commission if any changes occur regarding his certifications procedures that would require him to utilize paid certification courses in Mental Health First Aid for Public Safety as that may 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: § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-7(a) Commission Regulation 36-14-7001 Related Advisory Opinions: A.O. 2018-32 A.O. 2016-33 A.O. 2016-6 A.O. 2008-12 A.O. 2006-8 A.O. 2003-55 A.O. 99-39 Keywords: Private Employment [1]According to the RI Secretary of State website, BlueAid Consulting provides consultation services to individuals or organizations seeking to improve public health and public safety outcomes for people experiencing mental and substance use issues. BlueAid Consulting’s services concentrate on public safety training, specialized law enforcement-based programs, leadership development, strategic planning, risk mitigation, and policy development. See http://business.sos.ri.gov/CorpWeb/CorpSearch/CorpSummary.aspx?FEIN=001… [2] The Petitioner explains that NESPIN is an entity that specializes in information sharing among law enforcement agencies, is funded by the Department of Justice, and has a principal office in Franklin, Massachusetts.