Advisory Opinion No. 2000-76

Re: Brandon B. Faneuf

QUESTION PRESENTED

The petitioner, a wetlands scientist employed by the Department of Environmental Management (DEM) in the Total Maximum Daily Load (TMDL) Program, a state employee position, requests an advisory opinion as to whether he may accept private employment as a wetlands scientist while retaining his current employment with the TMDL Program given that he may have contact with the other divisions/programs in the DEM, specifically the Freshwater Wetlands Program, and/or with the Coastal Resource Management Council (CRMC).

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a wetlands scientist employed by the Department of Environmental Management (DEM) in the Total Maximum Daily Load (TMDL) Program, a state employee position, may accept private employment as a wetlands scientist while retaining his current employment with the TMDL Program. We further conclude that, subject to the limitations set out below, he may have contact with the other divisions/programs in the DEM, specifically the Freshwater Wetlands Programs, and/or with the Coastal Resource Management Council (CRMC) in that private employment.

The petitioner represents that the TMDL Program at the DEM is responsible for restoring depredated water bodies and watersheds within the State to levels compliant with relevant water quality standards. He further advises that it is the responsibility of the Freshwater Wetlands Program to carry out the provisions of the state's Freshwater Wetlands Act. Critically, he states that the TMDL Program differs markedly from the Freshwater Wetlands Program such that in his employment at the DEM he has little or no contact with the latter. The DEM and the CRMC both have segments of jurisdiction over the state's freshwater wetlands. The jurisdictional line is determined by road and highway demarcations. Applicants for wetlands alteration permits must submit detailed blueprint site plans, with specific wetlands delineation, to either the DEM or the CRMC, depending on which agency has jurisdiction in the particular instance. The required submissions almost always require the involvement of a wetlands specialist. The private employment contemplated by the petitioner would involve him with the preparation and submission of permit applications and supporting documentation to the DEM's Freshwater Wetlands Program and to the CRMC.

The Code of Ethics provides that the petitioner shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction which is in substantial conflict with the proper discharge of his duties in the public interest. A substantial conflict of interest occurs if the petitioner has reason to believe or expect that he or any family member or business associate, or any business by which he is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, the Code provides that the petitioner shall not accept other employment which will either impair his independence of judgment as to his official duties or induce his to disclose confidential information acquired by his in the course of and by reason of his official duties. R.I. Gen. Laws § 36-14-5(b). In addition, a person subject to the Code may not participate in the consideration and/or disposition of a matter involving a business associate. R.I. Gen. Laws § 36-14-5(f). “Business associate” is defined as any individual or entity joined with a public official or employee “to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3).

The Ethics Commission has issued a number of advisory opinions where it has given approval for employees to accept outside employment provided that a) the employees' official duties for their agency do not directly relate to their private employment; b) they complete the work before or after their normal working hours; and c) the employees do not appear before their own agency. See A.O.96-31 (concluding that two Social Caseworkers for the Department of Children, Youth and Families (DCYF), who in their private capacities operated a graphic design studio on a part-time basis, could provide graphic design services to residential facilities provided that they completed all graphic design services after normal working hours and other officials at DCYF decide where, if necessary, to place developmentally delayed children); D.R. 95-2 (opining that state employees who served process in their official capacities or were employed by a state agency involved in the service of process should not serve process as private agents outside of normal working hours since the outside employment directly related to their official duties; however, employees who did not serve process in their official capacities and who were not employed by an agency that is responsible for the service of process may serve process as private agents since their official duties and the official duties of their agency do not directly relate to such private employment); A.O. 97-45 (concluding that Department of Corrections employee could accept private employment as a group counselor for men who are on probation, parole, and electronic monitoring parole provided that she does not participate in activities in her private employment where her inmates are involved, not accept as clients in her private employment individuals who have a reasonable likelihood of having professional contact with her as a result of her public duties and responsibilities, and in situations where an existing private client becomes involved with the Department of Corrections, she should recuse from participation in her role as Community Program Counselor involving that client); A.O. 97-98 (advising Superior Court Clerk that she could accept other employment so long as she did not receive special access of information from the Court in performing her private employment); A.O. 98-169 (finding that EDC film coordinator could accept employment with private film industry interests provided that she did not have an on-going supervisory responsibility with a private concern that wishes to hire her, involvement in a substantive decision made at the EDC that affected the private concern, an agreement between the petitioner and the private concern that she would be hired by them in return for some official action, or use of her position at the EDC to promote her own private employment); A.O. 99-70 (concluding that DEM employee could work for a private company so long as he did not submit material for approval before his former Division until one year from the official severance of his position with that Division).

In past decisions, the Commission has held that the provisions of subsection 5(e), whether for concurrent private sector employment or private sector employment upon leaving state service, may apply to either the entire agency by which an individual was employed or, more narrowly, to only the department within an agency that formerly employed the individual or with whom he/she had contact. Whether to view a division or department within an agency as a separate and distinct entity for purposes for applying section 5(e)'s restrictions depends upon factors such as, for instance, the overall size of the agency and the autonomy of divisions/departments within the agency. Treating divisions/departments as separate and distinct entities is the method of analysis that the Commission has applied to, for instance, the DEM, the Department of Transportation and the Department of Human Services.

In this matter, the petitioner represents that the program within the DEM in which he works, the TMDL, is very different in nature from DEM's Freshwater Wetlands Program, which would be the focus of his work in the private sector. Because the two programs are separate and distinct within the DEM, we conclude that the petitioner may submit permit applications and other materials to the Freshwater Wetlands Program without violating the relevant provisions of the Code of Ethics. However, the petitioner may not have any personal involvement with a matter before the TMDL Program of the DEM. R.I. Gen. Laws § 36-14-5(e). Additionally, the petitioner may not use any confidential information he obtained while working for the TMDL Program for financial gain. R.I. Gen. Laws § 36-14-5(b), (c), (d). In particular that means that the petitioner must be careful not to use confidential information gained through his employment at the DEM to his advantage in submitting materials to a distinct program within the DEM on behalf of private clients.

Finally, because the DEM and the CRMC are separate governmental entities the petitioner may appear before that agency on behalf of private clients. As with his involvement with the DEM programs as discussed above, however, the petitioner may not use his public position, public time or resources, or confidential information obtained during the course of his public employment for the benefit of private clients.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

99-102

99-70

99-39

98-169

98-154

98-103

97-98

97-93

97-1

96-31

D.R. 95-2

Keywords:

Private Employment