Advisory Opinion No. 2019-65 Rhode Island Ethics Commission Advisory Opinion No. 2019-65 Approved: November 19, 2019 Re: Margie O’Brien QUESTION PRESENTED: The Petitioner, the Director of Capitol Television, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from hosting, in her private capacity and on her own time, a television special aimed at de-stigmatizing mental illness and addiction in Rhode Island. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Director of Capitol Television, a state employee position, is not prohibited by the Code of Ethics from hosting, in her private capacity and on her own time, a television special aimed at de-stigmatizing mental illness and addiction in Rhode Island. The Petitioner is the Director of Capitol Television (“Capitol TV”), the television production department of the Rhode Island General Assembly, under the jurisdiction of The Joint Committee on Legislative Services, which televises all sessions of the House of Representatives and the Senate using the Rhode Island Cable Television Statewide Interconnect System. Capitol TV additionally televises all hearings of the House Finance Committee, selective hearings held by other legislative committees, and various press conferences and other special events held at the State House.[1] In addition to supervising an office and staff of eleven individuals, the Petitioner states that her public duties include overseeing the programming at Capitol TV and, in her reporter role, hosting the programs Legislative Insight and Capitol Spotlight. Both programs offer viewers an in-depth look at pending and approved legislation through stories and interviews. She further states that she works full-time at this position, from 9:00 a.m. to 4:30 p.m., Monday through Friday. The Petitioner represents that, in her private capacity, she has been asked by a representative from the social media agency, Sociable, to host a television program entitled “It’s OK not to be OK” (“show”). The show is part of a campaign aimed at de-stigmatizing mental illness and addiction in Rhode Island, and is presently scheduled to air on December 13, 2019, simultaneously on the local affiliate stations of ABC, CBS, NBC and Rhode Island PBS. The Petitioner states that the show will be thirty-minutes in length, adding that in her capacity as host she would be introducing stories by reporters from each of the aforementioned stations. Sociable, which is a private entity, would compensate the Petitioner for her role as host by paying her a flat fee, the entire amount of which would come from grant funding from the Federal Substance Abuse and Mental Health Services Administration. The Petitioner explains that she would be required to work a total of two days to tape the show and that she would use personal time to do so. She explains that any promotion she would do for the show would be in the form of voice-over work associated with radio advertising, adding that this, too, would be done on her own time, without the use of public resources, and be covered by the flat fee she would be receiving to host the show. 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. 2019-53 (opining that a Vocational Rehabilitation Counselor for the Rhode Island Department of Human Services, Office of Rehabilitation Services (“ORS”), was 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, provided that all the work was performed on her own time and without the use of public resources or confidential information obtained as part of her state employment at ORS); A.O. 2019-52 (opining that a Project Manager in the Office of Stormwater Development at the Rhode Island Department of Transportation (“DOT”) was 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, because there was 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); 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). 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. Here, based on all of the representations above, it is the opinion of the Ethics Commission that there is no evidence that the Petitioner’s private employment as the host of the television special aimed at de-stigmatizing mental illness and addiction in Rhode Island would either impair her independence of judgment or create an interest in substantial conflict with her public duties as the Director of Capitol TV. Accordingly, the Code of Ethics does not prohibit the Petitioner from working in her private capacity as the host of “It’s OK not to be OK”, provided that all of 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 as the Director of Capitol TV. In the event that any changes occur with regard to her public and/or private employment that would present a potential conflict of interest under the Code of Ethics, the Petitioner is advised to 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. 2019-53 A.O. 2019-52 A.O. 2019-27 A.O. 2019-14 Keywords: Secondary Employment [1] www.rilin.state.ri.us, last visited November 1, 2019.