Advisory Opinion No. 2000-43

Re: Richard A. Yacino, R.Ph.

QUESTION PRESENTED

The petitioner, the Chief of the Rhode Island Board of Pharmacy, a state employee position, requests an advisory opinion as to whether he may provide consulting services for a company that is seeking a license to engage in the pharmacy business in Rhode Island, the industry that his board regulates, given that he would provide the consulting services only outside the State of Rhode Island.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the petitioner, the Chief of the Rhode Island Board of Pharmacy, a state employee position, from accepting employment, as a consultant or otherwise, with a company that is seeking a license to engage in the pharmacy business in Rhode Island, which is the business his board regulates, notwithstanding the fact that he proposes to provide employment and/or consulting services only outside the State of Rhode Island.

The petitioner advises that he is the Chief of the Rhode Island Board of Pharmacy, a board that operates within the state's Department of Health. The responsibilities of the petitioner and his board include the inspection and regulation of pharmacies in the State of Rhode Island. The petitioner has been asked by the president of a company that is seeking a pharmacy license in the State to act as a consultant to that company. The petitioner represents that his responsibilities would be to offer inspection and consulting services to the company only outside the State of Rhode Island. He further represents that were the company to obtain a license in Rhode Island he and his board would be responsible for the inspection and regulation of that pharmacy.

Under the Code of Ethics, the petitioner may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. Substantial conflict is defined as a “direct monetary gain or a direct monetary loss” that accrues, by virtue of the public official’s activity, to that individual, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). He may not accept outside employment that will impair his independence of judgment as to his official duties or responsibilities. See R.I. Gen. Laws § 36-14-5(b). Additionally, the Code provides that a public official or employee may not use his office to obtain financial gain other than as provided by law. See R.I. Gen. Laws § 36-14-5(d).

The Code of Ethics bars the petitioner from accepting employment and/or acting as a consultant for a company that he and his board regulates, regardless of whether the work he does is within or outside the State of Rhode Island. As an employee or consultant for a private company the petitioner would be a business associate of that company and its principals. He also would have an interest in the company's financial well being. That same company would be subject to inspection and regulation by the petitioner and his board, as would all of the competitors of the company that did business in the State of Rhode Island. Under all of the provisions of the law cited above the petitioner would have impermissible conflicts of interest. In short, he would be in the position of regulating and inspecting both his employer and his employer's competitors. That sort of intersecting of public responsibilities and private interests falls squarely within the purview of the Code of Ethics and is prohibited. Also, while in some private employment situations potential conflicts of interest can be cured and/or avoided all together by recusals, that is not the case here. The petitioner's and his board's involvement with the pharmacy industry simply is too pervasive to allow him to work simultaneously in the private sector of that industry, unless it were with a company that had no business dealings in the State of Rhode Island.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(e)

36-14-6

36-14-7(a)

Related Advisory Opinions:

99-118

99-72

99-59

99-9

99-8

98-151

98-131

98-123

98-111

98-95

97-7

96-70

96-24

94-24

92-65

92-20

92-19

91-41

Keywords:

Business Interest

Competitor(s)

Financial Interest

Private Employment