Advisory Opinion No. 2019-27 Rhode Island Ethics Commission Advisory Opinion No. 2019-27 Approved: April 23, 2019 Re: Andrew Loiselle QUESTION PRESENTED: The Petitioner, a Motor Vehicle Operator Examiner for the Division of Motor Vehicles, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from working, on his own time, as a part-time Driver Retraining Course Administrator for the Driver Retraining Program at the Community College of Rhode Island. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Motor Vehicle Operator Examiner for the Division of Motor Vehicles, a state employee position, is not prohibited by the Code of Ethics from working, on his own time, as a part-time Driver Retraining Course Administrator for the Driver Retraining Program at the Community College of Rhode Island. The Petitioner is employed as a Motor Vehicle Operator Examiner (“Operator Examiner”) for the Division of Motor Vehicles (“DMV”). He states that he would like to attend a training this June at the Community College of Rhode Island (“CCRI”), which he anticipates may lead to an offer of part-time employment as a Driver Retraining Course Administrator (“Course Administrator”) for the Driver Retraining Program at the CCRI. The Petitioner states that his general duties as an Operator Examiner include, but are not limited to, assisting with the administration of written, visual, oral and performance tests to applicants in connection with the issuance of motor vehicle operators’ licenses. He further states that, prior to the administration of driver qualifying tests, he reviews for completeness and accuracy all applications and supporting documents for motor vehicle operators’ licenses; administers and scores eye tests, written tests, and road tests relevant to the issuance of a motor vehicle operator’s permit, commercial driver’s license, or license; lectures on driving safety to applicants; and responds to inquiries from the public and co-workers about requirements and procedures. The Petitioner adds that he works at the DMV’s Safety and Emissions Department in Providence from 8:30 a.m. until 4:00 p.m., Monday through Friday. The Petitioner describes the Driver Retraining Program as comprised of four separate court-imposed courses for licensed drivers who have violated motor vehicle laws. He identifies the specific courses as: the Alcohol/DUI/Refusal course; the Defensive Driving/DRIVE Attitudes course for motorists who receive moving violations in another state; the Colin Foote course for anyone convicted of four separate moving violations within an 18-month period; and the Teen Re- Education for Exceeding Driving Speed (TREDS) course for first-time speeding offenders who are on a Graduated Driver’s License or who have had a driver’s license for less than one year. The Petitioner states that, as a Course Administrator, he would be tasked with administering information during classroom sessions to participants in the Alcohol/DUI/Refusal course, adding that he could eventually also be assigned to any or all of the other three courses in the Driver Retraining Program. He further states that his employer would be the CCRI, and that he would work part-time nights and weekends, outside of his normal working hours at the DMV. The Petitioner represents that, although all registration fees for the Driver Retraining Program must be paid at the DMV in Cranston, he would have no involvement in their collection or management. He further represents that all scheduling for the Driver Retraining Program is handled by the CCRI, and that he would neither be required to engage with the DMV in his capacity as a Course Administrator, nor be required to engage with the Driver Retraining Program in his capacity as an Operator Examiner. He adds that the DMV does not refer anyone to the Driver Retraining Program, as all referrals are through the court system. 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 a public 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 member, 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). The 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. 2017-40 (opining that a Probation and Parole Supervisor for the Rhode Island Department of Corrections was not prohibited by the Code of Ethics from working, in his private capacity, as an adjunct professor at Rhode Island College, provided that all work and preparation for his classes was performed on his own time and without the use of public resources or confidential information obtained as part of his state employment). Contra, A.O. 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 included domestic violence offenders requiring referrals to batterer intervention programs). The Ethics Commission examines several factors when considering potential conflicts regarding secondary employment. These factors include, but are not limited to, the nexus between the official’s public duties and private employment; whether the employee completes such work outside his or her normal working hours and without the use of public resources; that the employee not appear before his or her own agency; that such work be conducted outside of the areas over which the person has decision-making jurisdiction; and that the employee does not use his or her position to solicit business or customers. See General Commission Advisory No. 2009-4. The facts as presented in the instant matter mirror, to an extent, those in Advisory Opinion 98-103, wherein the Ethics Commission opined that a DMV Operator Examiner could accept part-time employment with the CCRI to conduct classroom instruction and road tests of school bus drivers, provided that he taught the course on his own time; did not administer written examinations and/or road tests to individuals seeking school bus driver licenses as part of his duties at the DMV; and refrained from participating in any matters involving school bus drivers, including the review and/or notarization of applicants for school bus driver licenses. Here, there is even less of a nexus between the Petitioner’s employment as an Operator Examiner and his potential employment as a Course Administrator because, unlike the student bus drivers taught by the petitioner in advisory opinion 98-103, the students of the instant Petitioner have no related interaction with the DMV following their instruction. 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 CCRI would either impair his independence of judgment or create an interest in substantial conflict with his public duties at the DMV. Accordingly, the Code of Ethics does not prohibit the Petitioner from accepting employment as a Course Administrator for the Driver Retraining Program at the CCRI, provided that all 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 DMV. The Petitioner is advised that, in the event his responsibilities at the DMV or the CCRI change, he should seek further guidance from the Ethics Commission. 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: General Commission Advisory No. 2009-4 A.O. 2018-32 A.O. 2017-40 A.O. 98-103 Keywords: Secondary Employment