Advisory Opinion No. 2019-53 Rhode Island Ethics Commission Advisory Opinion No. 2019-53 Approved: September 24, 2019 Re: Elizabeth Champagne, MA, CSEP QUESTION PRESENTED: The Petitioner, a Vocational Rehabilitation Counselor for the Rhode Island Department of Human Services, Office of Rehabilitation Services, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from working, on her own time, as a certified yoga instructor for young children and/or adults with disabilities. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Vocational Rehabilitation Counselor for the Rhode Island Department of Human Services, Office of Rehabilitation Services, a state employee position, is not prohibited by the Code of Ethics from working, on her own time, as a certified yoga instructor for young children and/or adults with disabilities. The Petitioner is a Vocational Rehabilitation Counselor (“Vocational Counselor”) for the Office of Rehabilitation Services (“ORS”) within the Rhode Island Department of Human Services. She explains that the mission of ORS is to assist individuals with disabilities to obtain and maintain competitive employment. The Petitioner represents that her caseload consists primarily of high school students and adults who reside in northern Rhode Island, adding that that she occasionally works with individuals residing in other areas of the state. The Petitioner explains that she would like to become a certified yoga instructor for young children and adults with disabilities, adding that she would do this part-time, on her own time. She states that, although ORS may refer individuals to physical therapy, it very rarely refers an individual to a yoga class. The Petitioner further states that if any individual on her caseload requires a referral to a yoga class, she will recuse herself from further participation on that individual’s case and make arrangements for the case to be re-assigned to one of her colleagues. Given this set of facts, the Petitioner requests guidance from the Ethics Commission regarding whether the Code of Ethics prohibits her from teaching yoga to children and/or adults with disabilities. The Code of Ethics provides that a public official 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. R.I. Gen. Laws § 36-14-5(b). Furthermore, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her duties or employment in the public interest. Section 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that she, any person within her family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Finally, the Code of Ethics prohibits a public official from using her public office or confidential information received through her public 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 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. In Advisory Opinion 2016-4, for example, the Ethics Commission opined that a probation and parole officer with the Rhode Island Department of Corrections (“DOC”) was not prohibited by the Code of Ethics from working at the Rhode Island Batterer’s Intervention Program (“RIBIP”) as a facilitator of a twenty-week court-mandated batterer intervention program based on his representations that his caseload did not include, and was unlikely to ever include, a probationer who required a referral to a batterers intervention program and that his private employment would occur on his own time, without the use of public resources, equipment, or confidential information obtained as part of his public employment. The Ethics Commission was satisfied that sufficient separation existed between the petitioner’s duties as a DOC probation and parole officer and his part-time work at the batterers intervention program, that he was not taking actions while at the DOC to financially benefit himself or the RIBIP, and that his private employment at the batterers intervention program did not impair his independence of judgment or induce him to disclose confidential information gained in the course of his duties at the DOC. See also A.O. 2011-20 (opining that a senior planner at the Rhode Island Department of Administration, Division of Planning, was not prohibited by the Code of Ethics from working in his private capacity as a real estate salesperson, provided that all such work 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. 2016-33 (opining 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). In the present matter, the Petitioner’s representations do not indicate that her employment as a certified yoga instructor would either impair her independence of judgement or create an interest in substantial conflict with her public duties at ORS. Accordingly, the Code of Ethics does not prohibit the Petitioner from working in her private capacity as a certified yoga instructor for young children and adults with disabilities, provided that all the work is performed on her own time and without the use of public resources or confidential information obtained as part of her state employment at ORS. Furthermore, the Petitioner shall not use her public position to promote or advertise her private employment, nor shall she list her public employment as part of the advertisement of her private work. The Petitioner is advised to seek further guidance from the Ethics Commission if any changes occur within her ORS employment that could 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. 2016-33 A.O. 2016-4 A.O. 2011-20 Keywords: Secondary Employment