Advisory Opinion No. 2019-52 Rhode Island Ethics Commission Advisory Opinion No. 2019-52 Approved: September 24, 2019 Re: Alisa Richardson QUESTION PRESENTED: The Petitioner, a Project Manager in the Office of Stormwater Development at the Rhode Island Department of Transportation, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from continuing to appear, in her private capacity and on her own time, at various municipal planning and zoning board meetings on behalf of neighborhood associations concerned with stormwater practices and water quality treatments. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Project Manager in the Office of Stormwater Development at the Rhode Island Department of Transportation, a state employee position, is not prohibited by the Code of Ethics from continuing to appear, in her private capacity and on her own time, at various municipal planning and zoning board meetings on behalf of neighborhood associations concerned with stormwater practices and water quality treatments. The Petitioner is employed as a Project Manager in the Office of Stormwater Development at the Rhode Island Department of Transportation (“DOT”). She states that her duties include advising and writing policy for the Stormwater Administrator regarding the technical aspects of stormwater treatment unit design; managing eleven engineering firms to assure that projects are built on time, on budget, and to DOT specifications; reviewing stormwater treatment designs; and advising other DOT managers regarding bridges being built and roadways being repaved. The Petitioner states that, over the past year, she has appeared on several occasions, in her private capacity and on her own time, at various municipal planning and zoning board meetings as an advocate for neighborhood associations concerned with stormwater practices and water quality treatments, in opposition to certain applicants seeking land development permits. She further states that she was previously employed for twenty-five years at the Rhode Island Department of Environmental Management (“DEM”), explaining that it was the expertise she amassed during her tenure there, including her work coordinating with the Division of Freshwater Wetlands in the Office of Water Resources and approving stormwater and water quality treatment units for land development projects, that led to her opportunities to advocate for neighborhood associations. The Petitioner represents that she would like to continue to advocate on behalf of neighborhood associations before municipal planning and zoning boards and states that, as she has done in the past, she would continue to do so outside of her regular work hours for the DOT and without the use of public resources. She adds that this advocacy work does not require her to appear before the DOT and that she has not, and would not, use her position with the DOT to solicit clients. She also represents that, while some of her work as an advocate is performed on a volunteer basis, she has on occasion been paid by a neighborhood association for her work and would like that option in the future. The Petitioner states that her work as an advocate would not impair her independence of judgment with respect to her professional duties at the DOT. The Petitioner states that a successful permit applicant against whom she advocated on behalf of a neighborhood association might later seek a permit from the DOT’s Physical Alteration Permitting Program. She further states that, under those circumstances, the neighborhood association has no standing to oppose the permit applicant before the DOT. The Petitioner emphasizes that she is not affiliated with the Physical Alteration Permitting Program and has no decision-making authority with respect to whether or not a permit application is granted. The Petitioner also states that permit applicants who appear before municipal planning and zoning boards sometimes engage engineering firms to testify in support of an application. She offers that, although it has not happened to date, it is possible that an engineering firm which she supervises as part of her public duties at the DOT might eventually appear to testify in support of a permit application against which the Petitioner is advocating. The Petitioner represents that, in the event this were to happen, she would know about it well in advance of a municipal hearing and would decline any request from a neighborhood association to advocate under those circumstances. It is under this set of facts that the Petitioner seeks the guidance of the Ethics Commission regarding whether the Code of Ethics prohibits her from continuing to advocate at various municipal planning and zoning board meetings on behalf of neighborhood associations. The Code of Ethics provides that a public employee shall not have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity which 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 public employee has an interest which is in substantial conflict with the proper discharge of her duties or employment in the public interest if she has reason to believe or expect that she, any person within her family, her business associate, or any business by which she is employed or represents 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 of Ethics provides that a public employee may not use her office or confidential information received through her office to obtain financial gain for herself, her family member, her business associate, or any business by which she is employed or which she represents. Section 36-14-5(d). The Code of Ethics further provides that a public 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 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. 2019-27 (opining that a Motor Vehicle Operator Examiner for the Division of Motor Vehicles (“DMV”) was not prohibited by the Code of Ethics from accepting employment as a Course Administrator for the Driver Retraining Program at the Community College of Rhode Island, provided that all work was 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); 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). Compare A.O. 2010-14 (opining that a Senior Environmental Scientist with the DEM was prohibited by the Code of Ethics from reviewing permit applications submitted by the Westerly Land Trust to the DEM if she provided the Land Trust with professional and technical advice for the permit applications). 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; whether the employee is to appear before, or his or her work product is to be presented to, his or her own agency; whether such work is to be conducted outside of the areas over which the person has decision-making jurisdiction; and whether the employee uses his or her position to solicit business or customers. See General Commission Advisory No. 2009-4. The Petitioner has stated that she will decline requests to advocate for neighborhood associations in matters for which one of the engineering firms she supervises in her public capacity will be there to testify on behalf of a permit applicant. Upon consideration of the Code of Ethics, prior advisory opinions, and the facts as represented by the Petitioner, it is the opinion of the Ethics Commission that the Petitioner is permitted to perform the advocacy work, whether as a volunteer or for compensation, because there is no evidence that doing so would otherwise impair her independence of judgment or create an interest in substantial conflict with her public duties at the DOT. 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. 2019-27 A.O. 2017-40 A.O. 2010-14 Keywords: Secondary Employment