Advisory Opinion No. 2019-67 Rhode Island Ethics Commission Advisory Opinion No. 2019-67 Approved: November 19, 2019 Re: Sarkis Zeitountzian QUESTION PRESENTED: The Petitioner, a Rhode Island Family Court Investigator, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from owning and operating a private investigation firm that would provide background checks for private corporate clients and investigative services to private attorneys on cases that do not involve Family Court matters. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Rhode Island Family Court Investigator, a state employee position, is not prohibited by the Code of Ethics from owning and operating a private investigation firm that would provide background checks for private corporate clients and investigative services to private attorneys on cases that do not involve Family Court matters. For the past seven years the Petitioner has been employed as an Investigator by the Rhode Island Family Court (“Family Court”). He advises that his normal working hours are Monday through Friday, 8:30 a.m. to 4:00 p.m. and that his duties primarily include the conducting of custodial home studies ordered by the Family Court Judges and Magistrates. He further advises that, to accomplish his duties, he may visit a child’s home; interview parents, school officials, and healthcare providers; and may also testify at hearings in response to subpoenas issued on certain matters. The Petitioner represents that, in his private capacity, he would like to become a sole owner and operator of a private investigation firm; therefore, he recently applied and received a private investigator’s license from the City of Providence Licensing Board. The Petitioner states that, as a private investigator, he will only accept cases that do not involve Family Court matters and plans to provide background checks to private corporate clients and investigative services to private attorneys. The Petitioner represents that some of the attorneys may also have Family Court matters, but that he would not provide investigative services on such matters. He further represents that if he is assigned a matter in his public capacity as a Family Court Investigator that involves a person by whom he was hired or for whom he regularly provides private investigative services, he will ask his supervisor to re-assign the matter to one of his fellow Family Court Investigators. Further, the Petitioner states that he will perform his private work on his own time, outside his normal working hours as a Family Court Investigator, and without the use of public resources. Given this set of facts, the Petitioner requests guidance from the Ethics Commission regarding whether the Code of Ethics prohibits him from owning and operating a private investigation firm that would provide background checks for private corporate clients and investigative services to private attorneys on cases that do not involve Family Court matters. The Code of Ethics provides that a public employee 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. R.I. Gen. Laws § 36-14-5(b). Furthermore, 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 his duties or employment in the public interest. Section 36-14-5(a). A public employee has an interest which is in substantial conflict with the proper discharge of his duties or employment in the public interest if he has reason to believe or expect that he, any person within his family, his business associate, or any business by which he is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). 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). Finally, the Code of Ethics provides that a public employee may not use his office or confidential information received through his 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). 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. 2006-17 (opining that a Lieutenant on the East Providence Police Department could apply for a private investigator’s license and operate said business in the City of East Providence, provided that: 1) he had no involvement with matters subject to the East Providence Police Department’s official jurisdiction; 2) he did not disclose any confidential information he obtained in the course of his employment with the Police Department; 3) he performed such work on his own time and without the use of public resources, including law enforcement databases; 4) he did not use his position as a police officer to obtain clients or private work; and 5) he did not accept any cases or perform any work within the City of East Providence for as long as he was employed by the East Providence Police Department); A.O. 2001-46 (opining that a Bristol Police Officer assigned to the Detective Division may assist a private investigator in reviewing a criminal matter under the jurisdiction of the Massachusetts District Attorney’s Office, provided that he has no involvement with matters subject to the Bristol Police Department’s official jurisdiction). 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. In the present matter, the Petitioner’s representations do not indicate that his employment as a Private Investigator would either impair his independence of judgement or create an interest in substantial conflict with his public duties as a Family Court Investigator. Accordingly, the Code of Ethics does not prohibit the Petitioner from working in his private capacity as a private investigator, provided that all of the work is performed on his own time and without the use of public resources or confidential information obtained as part of his state employment with the Family Court. Furthermore, the Petitioner shall not use his public position to promote or advertise his private employment, nor shall he list his public employment as part of the advertisement of his private work. Furthermore, the Petitioner shall recuse from any matter that comes before him as a Family Court Investigator that involves any of the attorneys or entities for which he either provides private investigative services or with which he contracts on a regular basis. See A.O. 2012-32 (opining that the Acting Director of the Department of Planning and Development for the City of Providence was not prohibited by the Code of Ethics from teaching a course at Brown University, provided that all teaching work was performed on his own time, and he did not use public resources or confidential information obtained as part of his employment with the City; however the petitioner was required to recuse from any matters relating to Brown University that might come before him in his public capacity as Acting Director of the Department of Planning and Development and to refer such matters to his superiors). Recusal shall be pursuant to section 36-14-6. Finally, the Petitioner is advised to seek further guidance from the Ethics Commission if any changes occur within either his private or public employment that could present a conflict of interest. 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(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. 2019-27 A.O. 2012-32 A.O. 2010-14 A.O. 2006-17 A.O. 2001-46 GCA 2009-4 Keywords: Secondary Employment