Advisory Opinion No. 2000-93

Re: Kathryn G. Serrecchia, Administrator

QUESTION PRESENTED

The petitioner, Administrator of the State's Division of Professional Regulation within the Department of Labor and Training, a state employee position, requests an advisory opinion as to whether investigative employees of the Division, also state employee positions, may have private employment in the professional fields for which they have investigative, licensing and enforcement responsibilities.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that investigative employees of the State's Division of Professional Regulation within the Department of Labor and Training, state employee positions, may accept or maintain private employment in the professional fields for which they have investigative, licensing and enforcement responsibilities provided that 1) they do not perform such work within the State of Rhode Island, 2) they perform such work on their own time and without the use of public resources, and 3) they do not use their State positions to recruit potential clients.

The petitioner is the Administrator for the State's Division of Professional Regulation within the Department of Labor and Training. She advises that the Division is responsible for the licensing, examination and enforcement for electricians, hoisting engineers, pipefitters, refrigeration technicians, fire protection sprinklerfitters, sheet metal workers, telecommunications workers and plumbers. She further advises that a separate unit within the Division oversees each discipline, and that each unit has a Chief Investigator to investigate and assist with the enforcement of the regulations and laws that relate to that discipline. The common practice of the Division has been that Chief Investigators, and others responsible for the investigative, licensing and enforcement duties, would not have private employment in the discipline over which they exercised those responsibilities.

Under the Code of Ethics, the a public official or employee 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. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). He may not accept other employment which will impair his independence of judgment as to his official duties. See R.I. Gen. Laws § 36-14-5(b). Further, 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. See R.I. Gen. Laws § 36-14-5(d).

Here, the Chief Investigators and other investigative employees have the statutory and regulatory responsibility to license, investigate and enforce regarding a discreet professional discipline. For those employees to engage in private employment in that same discipline within the state would result in an inherent conflict of interest. On the one hand they would be regulating their competitors, while on the other their own office would be charged with regulating them. Therefore, the common practice that the Division has followed is consistent with the requirements of the Code of Ethics, at least as it relates to private employment within the State of Rhode Island.

By the same token, employment and/or work performed outside the State of Rhode Island would not present any inherent conflicts of interest. If investigative employees were licensed, or otherwise able to perform services beyond the jurisdictional reach of the Division, they would not be acting in matters in their private capacities where they exercised authority in their public capacities. As a result, they would not be in substantial conflict with their duties in the public interest nor should their judgment be impaired as to their public duties. The Commission concludes that the Division's investigative employees may accept or maintain private employment, provided that any such work is performed outside the State of Rhode Island. Also, the Division, and any affected employees, are reminded that they may not in any way use their public positions to solicit business for any private employment. See R.I. Gen Laws § 36-14-5(d).

This opinion is consistent with past advisory opinions where we have 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. 99-102 (advising that a Providence Water Supply Board employee may work for a computer vendor since he did not have any authority or control over the vendor for work provided to the Water Supply Board); A.O. 98-135 (concluding that a Providence employee in the Forest Management Program at the Scituate Reservoir may provide services to private landowners if he does not exercise authority over those landowners in his public employment); 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. 97-98 (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); see also A.O. 2000-27.

Code Citations:

36-14-5(a)
36-14-5(b)
36-14-5(d)
36-14-6
36-14-7(a)

Related Advisory Opinions:

2000-27
99-119
99-102
99-39
98-169
98-135
98-110
98-103
98-69
98-34
97-150
97-108
97-107
97-98
97-45
97-39
96-72
96-55
96-31
95-80
95-50
95-11
93-22
Declaratory Ruling 95-2

Keywords:

Private employment