Advisory Opinion No. 2000-85

Re: Richard G. Girasole, Jr.

QUESTION PRESENTED

The Petitioner, a Department of Environmental Management (DEM) employee, a state employee position, requests an advisory opinion as to whether he may accept part-time employment with the University of Rhode Island (URI) pursuant to its contract with the Korea Institute of Technology (KITECH) to provide environmental assistance to Korean industrial firms.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a Department of Environmental Management (DEM) employee, a state employee position, from accepting part-time employment with the University of Rhode Island (URI) to provide environmental assistance to industrial firms in Korea pursuant to URI’s contract with the Korea Institute of Technology (KITECH).

Since 1992 the Department of Environmental Management (DEM) has employed the petitioner, a professional engineer, in its Pollution Prevention Program. The petitioner’s responsibilities with the DEM include reviewing industrial processes and recommending changes that lower environmental impacts and prevent pollution, as well as providing compliance assistance to Rhode Island business and industry. He advises that the Korea Institute of Industrial Technology (KITECH) has contracted with University of Rhode Island’s (URI) Engineering Department to provide environmental assistance to industrial firms in Korea. He indicates that KITECH requires the services of a registered professional engineer with pollution prevention experience to review processes, recommend changes and produce flow diagrams and process and instrumentation diagrams. He represents that the work will be performed on a part-time basis and that he will be compensated by URI as a member of its payroll. He further advises that the DEM presently has a contract with URI to support the URI Center for P2. Although he occasionally works with the Center, he indicates that he is not paid from URI funds.

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 he 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 he shall not accept other employment which will either impair his independence of judgment as to his official duties 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). Finally, pursuant to R.I. Gen. Laws § 36-14-5(d), he is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate, or any business by which he is employed or which he represents.

Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to simultaneous service as a DEM employee and as a part-time URI employee. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out an employee's duty in the public interest. For there to be an interest in substantial conflict, there must be some evidence of a financial nexus between the petitioner's public positions and his private interests.

The DEM and URI have sufficiently distinct spheres of responsibilities such that it is unlikely, and at most highly speculative, that the petitioner’s independence of judgment would be affected in either position by virtue of the fact that he also held the other position. Absent some direct financial nexus between his actions as a public employee wearing any different hat and his employer’s interest, there is no intrinsic conflict of interest that would preclude him from seeking and accepting part-time position employment with URI relative to its KITECH contract. See A.O. 98-75 (advising a member of the Highway Commission, the Finance Board and the Economic Development Commission for the Town of Hopkinton that the Code of Ethics did not prohibit him from serving as a member of the Chariho Regional School Committee absent a direct financial nexus between his actions as a public official wearing one hat and his position as a public official wearing a second hat).

However, the petitioner must engage in a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out his duties in the public interest for purposes of the Code of Ethics. In the event that matters involving the DEM and/or URI appear before the petitioner in the course of his other public employment, he must exercise the Code’s recusal provision. Notices of recusal should be filed with the Ethics Commission and the DEM and/or URI in accordance with R.I. Gen. Laws § 36-14-6. Further, the petitioner advises that he occasionally performs work with the URI Center for P2 as part of his DEM employment, for which he receives no compensation from URI. The fact that the DEM has a contract with URI to support the Center does not implicate any of the prohibitions contained within the Code of Ethics. Finally, the petitioner is reminded that all work relating to any part-time employment with URI must be performed on his own time and without use of the DEM’s resources.

Code Citations:

36-14-5(a)
36-14-5(b)e
36-14-5(d)
36-14-7(a)

Related Advisory Opinions:

2000-82
2000-56
2000-54
99-149
99-89
99-62
99-22
99-12
98-168
98-99
98-75
98-37
98-21
97-149
97-80
97-43
97-23
96-9
95-62
95-38
93-13
90-11

Keywords:

Dual public roles