Advisory Opinion No. 2020-1 Rhode Island Ethics Commission Advisory Opinion No. 2020-1 Approved: January 7, 2020 Re: Wendy Allmendinger QUESTION PRESENTED: The Petitioner, a probation and parole officer at the Rhode Island Department of Corrections, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from working in her private capacity as an independent contractor providing supervised visitation services to Rhode Island families. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a probation and parole officer at the Rhode Island Department of Corrections, a state employee position, is not prohibited by the Code of Ethics from working in her private capacity as an independent contractor providing supervised visitation services to Rhode Island families. The Petitioner has been employed as a probation and parole officer with the Rhode Island Department of Corrections (“DOC”) since December of 2017. She represents that she works full-time, Monday through Friday, 8:30 a.m. to 4:00 p.m., at the DOC’s Pawtucket Regional Office. The Petitioner states that her caseload consists of domestic violence offenders who live in Pawtucket, Central Falls, Lincoln, and Cumberland. She explains that she is one of two probation and parole officers in her office who are assigned domestic violence caseloads. Additionally, the Petitioner further explains that her office is additionally comprised of two probation and parole officers with sex offender-specific caseload, and six probation and parole officers with generic caseloads, who can also supervise domestic violence offenders as needed. In her private capacity, the Petitioner would like to accept part-time employment as an independent contractor providing supervised visitation services to Rhode Island families at Strengthening Family Foundations, LLC (“SFF”), a Rhode Island limited liability company in the business of providing supervised visitations between non-custodial parents and their child or children. She states that supervised visitations are typically funded by the non-custodial parent, and occasionally by the custodial parent, but never by a state agency, adding that she would be compensated by SFF for each supervised visitation upon payment by a parent. She further states that her duties at SFF would include contacting the parent or parents to schedule the supervised visitation, observing the parent-child interaction without directing the conversation or providing any guidance, and drafting a summary relative to the supervised visitation to be used for court proceedings. The Petitioner explains that, while some of the non-custodial parents who receive services at SFF are on probation, the owner of SFF has assured her that the Petitioner would never be assigned any families who have a parent currently on probation. In addition, the Petitioner emphasizes that she would not accept any cases which involve a person currently on probation in Rhode Island or whose probation she has supervised in the past. Moreover, the Petitioner states that, if she is assigned a matter in her public capacity as a probation and parole officer that involves a parent whose visitations she is supervising or has supervised in the past as part of her employment with SFF, she will ask her supervisor to re-assign the matter to one of her fellow probation and parole officers within the Petitioner’s office. The Petitioner further states that, alternatively in such circumstances, the owner of SFF could also re-assign the case she is working on to someone else in order to avoid any conflicts of interest. The Petitioner represents that her duties as a probation and parole officer do not involve making referrals to visitation services, which she believes are made by the Family Court. She states that her part-time employment would be completed outside of her normal working hours with the DOC, and that she would not use her public position to promote her private employment. Based on this set of facts that Petitioner seeks guidance from the Ethics Commission regarding whether she may accept the part-time work as an independent contractor providing supervised visitation services at SFF. Under the Code of Ethics, a public official or employee 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. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if a public official or employee has reason to believe or expect that she, any person within her family member, her business associate or employer 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 prohibits a public official or employee from using her public office or confidential information received through her public office to obtain financial gain for herself, her family, her business associate, or any business by which she is employed or which she represents. Section 36-14-5(d). 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 official or 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). Provided that the above provisions concerning conflicts of interest, use of confidential information and maintaining independence of judgment are satisfied, the Code of Ethics does not preclude a public employee from engaging in outside or secondary employment. The Ethics Commission has issued a number of advisory opinions in which it has given approval for DOC employees to accept outside employment. For example, in Advisory Opinion 2016-7, the Commission opined that a Probation and Parole Training Officer and Intern/Volunteer Coordinator at the DOC could continue working at the Rhode Island Batterer’s Intervention Program (“RIBIP”) as a facilitator, given that her official duties at RIBIP did not involve the supervision of any offenders or probation/parole officers, or the referral of anyone to RIBIP classes, and her private employment occurred on her own time and without the use of any DOC resources or equipment. See also A.O. 2015-38 (opining that a DOC probation and parole officer’s proposed private employment as a batterer’s intervention program facilitator at Vantage Point, Inc., was not prohibited by the Code of Ethics based upon his representations that his private employment would occur on his own time, without the use of public resources or confidential information obtained from his DOC employment, and that, because his caseload was limited to sex offender probationers, it was unlikely that he would be assigned a probationer that required a referral to a batterer intervention program). Contra A.O. 2018-32 (opining that a DOC probation and parole officer was prohibited by the Code of Ethics from working in her private capacity as a facilitator at the RIBIP because her caseload specifically included domestic violence offenders requiring referrals to batterer intervention programs). 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, based on all the representations above, it does not appear that the Petitioner’s employment as a part-time independent contractor providing supervised visitation services at SFF would either impair her independence of judgement or create an interest in substantial conflict with her public duties. The Ethics Commission is, therefore, satisfied that sufficient separation exists between the Petitioner’s duties as a DOC probation and parole officer and her proposed part-time work at SFF. However, the Code of Ethics requires the Petitioner to recuse from consideration of DOC matters in which her business associate or employer appears or presents evidence or arguments, and from matters that would financially impact her business associate or employer. See A.O. 2016-45 (opining that a member of the Tiverton Planning Board was prohibited by the Code of Ethics from participating in the Planning Board’s matters in which her business associate appeared as an expert witness for an applicant, given that they had worked together professionally in the past on projects and would often refer work and clients to each other); A.O. 2003-23 (opining that a West Warwick Development Commission member could not participate in consideration of any matter impacting his prospective employer). The Code of Ethics requires a public official or employee’s recusal until such time as no business relationship exists between the parties and there is no expectation of any business dealings between the parties in the near future. See A.O. 2004-11 (opining that a Town of Lincoln School Building Commission member, who also owned a carpentry business, was a business associate of any person or entity with which he was engaged as a subcontractor, and that the business associate relationship existed while the services were provided and until such time as the petitioner was paid and no further subcontracting work was anticipated). In prior advisory opinions, the Ethics Commission has concluded that a public official or employee is not a business associate of a third entity with which her employer has an independent business association, in the absence of an independent financial nexus between the public official or employee and the third entity. In Advisory Opinion 2017-17, for example, the Ethics Commission opined that a Westerly Town Council member who was privately employed as a financial advisor by Prudential Financial and was authorized to sell, among others, Transamerica Corporation (“Transamerica”) investment products, was a business associate of Transamerica. There, the petitioner received a commission from the company based on that company’s investment products he purchased for his clients, thereby creating an independent financial nexus between himself and any company offering a particular investment product. Here, the Petitioner would be an independent contractor providing supervised visitation services at SFF, for which she is paid by SFF upon payment by the parents for whom she provides the services. After considering all of the representations herein, and consistent with the Code of Ethics and prior advisory opinions, it is the opinion of the Ethics Commission that there would be an independent financial nexus between the Petitioner and the SFF clients for whom the Petitioner provides supervised visitation services; thereby, creating a business association between the Petitioner and those clients, and thus, disqualifying her from involvement in DOC matters that involve or financially impact those clients. However, once the business association has ended, and provided that there are no further business dealings anticipated, the Petitioner is no longer prohibited by the Code of Ethics from participating in matters that involve or financially impact his or her former business associate. See A.O. 2013-21 (opining that a member of the State Labor Relations Board, a private attorney, was not required to recuse from matters involving his former law client provided that the representation had concluded, that all outstanding legal fees had been paid in full, and there was no reasonable likelihood of reestablishing an attorney/client relationship in the foreseeable future). In summary, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from working part-time as an independent contractor providing supervised visitation services at SFF, 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 the DOC. The Petitioner, however, shall recuse from any matter that comes before her as a probation and parole officer that involves or impacts her private employer or the families for which she is actively providing supervised visitation services. 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 her 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. 2018-32 A.O. 2017-17 A.O. 2016-45 A.O. 2016-7 A.O. 2015-38 A.O. 2013-21 A.O. 2004-11 A.O. 2003-23 General Commission Advisory No. 2009-4 Keywords Secondary Employment