Advisory Opinion No. 2021-51

Rhode Island Ethics Commission

Advisory Opinion No. 2021-51

Approved:  August 17, 2021

Re:  Robert Almeida

QUESTION PRESENTED:

The Petitioner, the Supervising Forensic Scientist for the Rhode Island Department of Health, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from working, on his own time, as a private consultant on matters outside of and with no relation to the State of Rhode Island.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Supervising Forensic Scientist for the Rhode Island Department of Health, a state employee position, is not prohibited by the Code of Ethics from working as a private consultant on matters outside of and with no relation to the State of Rhode Island, provided that: all work is performed on his own time and without the use of public resources or confidential information obtained as part of his state employment at the RIDOH; he does not use his public employment to recruit or obtain potential clients; and he does not use his public employment to advertise or promote his private work. 

The Petitioner is the Supervising Forensic Scientist in the Laboratory of Forensic Toxicology (“Forensic Toxicology”) within the Rhode Island Department of Health (“RIDOH”) Center for Forensic Sciences.  The Petitioner represents that he has been employed full-time in Forensic Toxicology for the past seven years and that his normal working hours are Monday through Friday from 8:30 a.m. to 4:00 p.m.  The Petitioner states that Forensic Toxicology works closely with the Office of the State Medical Examiners and state law enforcement agencies to provide unbiased evaluation of evidence and courtroom testimony.  The Petitioner explains that, for example, Forensic Toxicology examines autopsy specimens for the presence and quantity of drugs, alcohol, and/or poisons in order to help the State Medical Examiners’ Office determine the cause and manner of someone’s death.  He also explains that Forensic Toxicology examines blood specimens obtained from motor vehicle operators suspected of driving under the influence of alcohol or drugs.  The Petitioner represents that as a supervisor he rarely performs the testing himself, but that he is responsible for the accurate performance of these tests.  He adds that he is also responsible for the budgetary needs of Forensic Toxicology. 

The Petitioner represents that he would like to begin private consulting work (“consulting work”) outside of his primary public employment with the RIDOH.  He states that such consulting work would include, but not be limited to, the review of post-mortem toxicology analyses as well as toxicology analyses relative to matters such as impaired driving and drug-facilitated crimes.  The Petitioner adds that he would also provide written opinions and/or testimony at depositions and, less commonly, at trials.  Additionally, he notes that there could be opportunities for him to participate in continuing education trainings and/or presentations, guest lecturing, general development of scientific materials, and laboratory test review.  Cognizant of the fact that all toxicology tests in matters related to Rhode Island are performed by Forensic Toxicology and overseen by him, the Petitioner states that his consulting work will be performed exclusively in connection with cases outside of and with no relation to the State of Rhode Island.  He further states that the consulting work would be performed outside of his normal working hours at the RIDOH, on the weekends, or during his vacation time, and never with any state resources or materials.  

The Petitioner represents that, in accordance with the RIDOH policy on secondary employment, he sought and received approval for his proposed consulting work from the Center Lead, the Division Director, the Chief Administrative Officer, and the RIDOH Secondary Employment Review Committee  (“Review Committee”), which noted that the approval may be withdrawn at any time if it is determined that the secondary employment has an adverse impact on the Petitioner’s primary employment.  The Review Committee also noted that the Petitioner’s proposed secondary employment shall not be permitted when it would create either directly or indirectly a conflict of interest with the Petitioner’s primary employment, or impair in any way the Petitioner’s ability to perform all expected duties, to make decisions and to carry out in an objective fashion the responsibilities of his public position.  The Review Committee further noted that no RIDOH funds may be used to meet the salary paid to the Petitioner by any secondary consultation work related to his request.

It is in the context of the Petitioner’s representations, subject to the RIDOH’s restrictions as outlined above, that the Petitioner seeks guidance from the Ethics Commission regarding whether his proposed consulting work is prohibited by the Code of Ethics. 

No person subject to the Code of Ethics shall 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 and by reason of his official duties.  R.I. Gen. Laws § 36-14-5(b).  Further, no person subject to the Code of Ethics shall 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 substantial conflict of interest exists if a public official or employee 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 which he represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity.  Section 36-14-7(a).  Finally, no person subject to the Code of Ethics shall use his public office or confidential information received through his public office to obtain financial gain for himself, any person within his family, 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. 2016-7 (opining that a probation and parole training officer and intern/volunteer coordinator at the Rhode Island Department of Corrections (“DOC”) could continue working at the Rhode Island Batterer’s Intervention Program (“RIBIP”) as a facilitator, given that her official duties at the DOC did not involve the supervision of any offenders or probation/parole officers, or the referral of anyone to RIBIP classes, and because her private employment occurred on her own time and without the use of any DOC resources or equipment); A.O. 2008-12 (opining that the Building Official for the Town of Little Compton could simultaneously work as a finish carpenter in the Town of Little Compton, provided that he did not inspect his own work); A.O. 2003-55 (opining that the Alternate Building Official for the Town of Coventry could do work in the Town of Coventry that did not require a permit or inspection, such as cabinetry work, painting, and tile work, provided that he would not be inspecting projects for which he provided services). 

Although the Ethics Commission has previously opined that certain public officials and employees could not hold secondary private employment within the same jurisdiction in which they publicly served because of a substantial conflict of interest between their public and private employment, the Ethics Commission has consistently allowed such public officials and employees to engage in secondary employment that was outside of their official public jurisdiction.  In Advisory Opinion 2015-36, for example, the Ethics Commission opined that an Assistant Medical Examiner for the State of Rhode Island was not prohibited by the Code of Ethics from working as a private consultant medical examiner and/or expert witness on cases outside of Rhode Island, provided that she performed all private consulting work on her own time and without the use of state resources or equipment, and that she did not work on cases that were subject to the jurisdiction of any state or federal court in Rhode Island or involved decedents who were residents of Rhode Island at the time of their death, or in which Rhode Island residents were parties to the lawsuit or criminal complaint.  See also A.O. 2016-16 (opining that an Environmental Health Food Specialist for the Rhode Island Department of Health, Office of Food Protection was not prohibited by the Code of Ethics from working as a food safety consultant for food establishments in Connecticut and/or Massachusetts, provided that: the owners of those establishments did not also own food establishments within her assigned region of public employment in Rhode Island; she performed such work on her own time and without the use of public resources or equipment; and she did not use her public employment to recruit or obtain potential clients); A.O. 2009-31 (opining that the Chief Plumbing Investigator for the Rhode Island Department of Labor and Training, who was also licensed as a master plumber and pipefitter, was prohibited from working as a plumber and pipefitter in the State of Rhode Island, but was not prohibited from performing such work outside of the State of Rhode Island, provided that such work was performed on his own time and without the use of public resources and that he did not use his state position to recruit potential clients); A.O. 2001-46 (opining that a Bristol Police Officer assigned to the Detective Division could assist a private investigator in reviewing a criminal matter under the jurisdiction of the Massachusetts District Attorney’s Office, provided that the petitioner had no involvement with matters subject to the Bristol Police Department’s official jurisdiction). 

Here, based on all of the Petitioner’s representations and particularly in the light of the approval issued by the RIDOH Secondary Employment Review Committee, it is the opinion of the Ethics Commission that there is no evidence that the Petitioner’s consulting work on matters outside of and with no relation to the State of Rhode Island would either impair his independence of judgement or create an interest in substantial conflict with his public duties at the RIDOH.  Accordingly, the Code of Ethics does not prohibit the Petitioner from working as a consultant in his private capacity on matters outside of and with no relation to the State of Rhode Island, provided that all 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 at the RIDOH.  Furthermore, the Petitioner may not use his public employment to recruit or obtain potential clients nor may he use his public employment to advertise or promote his private work.  The Petitioner is advised to seek further guidance from the Ethics Commission if any changes occur within his RIDOH employment that could present a conflict of interest under the Code of Ethics that is not anticipated within this advisory opinion.  

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. 2016-16
A.O. 2016-7
A.O. 2015-36
A.O. 2009-31
A.O. 2008-12
A.O. 2003-55
A.O. 2001-46

Keywords: 
Secondary Employment