Advisory Opinion No. 2018-9 Rhode Island Ethics Commission Advisory Opinion No. 2018-9 Approved: February 6, 2018 Re: Christopher B. Frenier QUESTION PRESENTED: The Petitioner, a Probation and Parole Supervisor for the Rhode Island Department of Corrections, 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, as a part-time counselor with a private psychiatric hospital in Massachusetts. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Probation and Parole Supervisor for the Rhode Island Department of Corrections, a state employee position, is not prohibited by the Code of Ethics from working, on his own time and in his private capacity, as a part-time counselor with a private psychiatric hospital in Massachusetts. The Petitioner is a Probation and Parole Supervisor with the Rhode Island Department of Corrections (“DOC”). In December 2017, in addition to his existing supervisory position in Newport, the Petitioner was promoted to also supervise the DOC’s Wakefield office where he oversees four probation and parole officers, including one who carries a sex offender-specific caseload. Due to this change in his public employment and in compliance with Advisory Opinion 2016-42[1] previously issued to him, the Petitioner terminated his part-time private employment with Behavioral Health and Medicine Associates (“BHMA”) where he co-facilitated sex offender group counseling and conducted sex offender assessments. The Petitioner represents that he has recently accepted a part-time counselor position at Arbour-Fuller Hospital, a private hospital in South Attleboro, Massachusetts which specializes in caring for people with psychological and substance-abuse disorders. The Petitioner states all the work will be performed on his own time, without the use of any DOC resources, and that his subordinates at the DOC do not make referrals to Arbour-Fuller Hospital. 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 counselor at Arbour-Fuller Hospital 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 exists if 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). Additionally, the Code of Ethics prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any business by which he is employed or which he represents. Section 36-14-5(d). Finally, the Code of Ethics provides that a public official 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 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). 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 as a counselor at Arbour-Fuller Hospital in Massachusetts would either impair his independence of judgement or create an interest in substantial conflict with his public duties at the DOC. Accordingly, the Code of Ethics does not prohibit the Petitioner from working part-time, in his private capacity as a counselor at Arbour-Fuller Hospital, 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 the DOC. The Petitioner is cautioned to seek further guidance from the Ethics Commission if any changes occur within his DOC 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 [1] The Ethics Commission opined that the Petitioner was not prohibited by the Code of Ethics from accepting part-time, private employment with a private sex offender counseling program, given that his subordinates did not make referrals to sex offender counseling. The Commission was satisfied that sufficient separation existed between the Petitioner’s duties at DOC and his part-time work at Behavioral Health and Medicine Associates.