Advisory Opinion No. 2019-59 Rhode Island Ethics Commission Advisory Opinion No. 2019-59 Approved: October 8, 2019 Re: Samantha Borden, PhD, MPH QUESTION PRESENTED: The Petitioner, a Public Health Epidemiologist in the Division of Behavioral Healthcare at the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from accepting a position as an adjunct faculty member at the University of Rhode Island. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Public Health Epidemiologist in the Division of Behavioral Healthcare at the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals, a state employee position, is not prohibited by the Code of Ethics from accepting a position as an adjunct faculty member at the University of Rhode Island. The Petitioner is employed full-time by the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (“BHDDH”) as a Public Health Epidemiologist in BHDDH’s Division of Behavioral Healthcare (“Division”). The Petitioner’s duties at BHDDH include analyzing data and interpreting findings relative to mental health and substance use disorders, and helping to prepare BHDDH’s block grant applications to the United States Department of Health and Human Services. The Petitioner states that students from the University of Rhode Island (“URI”) regularly work as paid or unpaid interns in her Division at BHDDH to, among other things, assist in writing block grant applications. For example, a student intern may help to complete the “needs assessment” portion of a block grant application. The Petitioner states that she sometimes interacts with such students and may edit their work as the grant applications are finalized, but that she is not currently responsible for supervising or monitoring interns, nor does she have a part in BHDDH’s decision-making relative to hiring interns. Furthermore, the Petitioner states that she has no involvement or decision-making relative to any contracts between BHDDH and URI. The Petitioner represents that she was recently approached by a faculty member of URI and asked whether she would be interested in a part-time position at URI as a member of the adjunct faculty. In a supplemental conversation with Ethics Commission staff the Petitioner stated that as an adjunct faculty member her duties might include teaching a class, mentoring students as a dissertation or thesis committee member, and assisting with publications and grant applications. She further notes that she would perform all of her duties for URI on her own time and without the use of any BHDDH resources or equipment. Finally, the Petitioner represented to Commission staff that while working for URI she would decline to mentor, or serve on an evaluation committee, for any URI student that is currently working or interning at BHDDH. Under the Code of Ethics, a public employee may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties and employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A public employee will have an interest in substantial conflict with her official duties if she has a reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of her official activity, to herself, her family member, her business associate, or any business by which she is employed or which she represents. Section 36-14-7(a). The Code of Ethics further provides that a public employee shall not engage in any employment that would impair her independence of judgment as to her public duties. Section 36-14-5(b). A public employee also is prohibited from using her public position or confidential information received through her position to obtain financial gain, for herself, her business associate or any business by which she is employed or which she represents, other than that provided by law. Section 36-14-5(d). A “business” is defined in the Code of Ethics as “a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, trust or any other entity recognized in law through which business for profit or not for profit is conducted.” Section 36-14-2(2). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7). As an initial matter, URI is a “state agency” as that term is used in the Code of Ethics, so that the Petitioner’s part-time work there as adjunct faculty would not amount to either a “business association” with URI or employment by a “business.” See A.O. 2008-50 (opining that URI is a public body and is not a “business,” and the Rhode Island State Veterinarian, a state appointed position, is not prohibited from serving as an adjunct professor at URI). Furthermore, the Petitioner represents that she has no involvement or decision-making relative to contracts between BHDDH and URI, nor does she supervise or monitor the URI students who work with BHDDH. Additionally, the Petitioner states that in her adjunct faculty position at URI she will decline to mentor, or serve on an evaluation committee for, any URI student who is currently working, or interning at, BHDDH. Accordingly, it is the opinion of the Ethics Commission that the facts represented by the Petitioner provide no indication that the Petitioner’s independence of judgment as to her official BHDDH duties would be impacted by her work at URI. Therefore, absent any other relevant fact that would implicate provisions of the Code of Ethics, the Petitioner is not prohibited by the Code of Ethics from serving on the adjunct faculty at URI. The Petitioner is cautioned, however, that if any matters should come before her as she is carrying out her duties in either of her public roles that may tend to impair her independence of judgment as to the performance of duties in the other role, or present any other potential conflict of interest that is not otherwise contemplated in this advisory opinion, in which it is reasonably foreseeable that there will be a financial impact upon the Petitioner personally, she shall either request further advice from this Commission or exercise the recusal provision found at section 36-14-6. 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(2) § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2008-50 A.O. 2003-31 A.O. 2002-63 A.O. 2002-55 Keywords: Business Associate Dual Public Roles