Advisory Opinion No. 2000-94

Re: Russell S. Chaufty

QUESTION PRESENTED

The petitioner, the supervising civil engineer in the Department of Environmental Management’s (DEM) Division of Planning and Development, a state employee position, requests an advisory opinion as to whether 1) he may prepare a dock design on his own time for another state worker’s personal use; and 2) he may employ the services of a co-worker in his Division for the project.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the supervising civil engineer in the Department of Environmental Management’s (DEM) Division of Planning and Development, a state employee position, may prepare a dock design for another state worker, provided that any such work is performed on private own time and does not involve the use of public resources. Further, he may employ the services of a non-subordinate co-worker within his Division on the project. However, the Code of Ethics prohibits him from employing a subordinate, unless the subordinate employee initiated any inquiry as to the availability of private employment opportunities.

The petitioner advises that the Department of Environmental Management’s (DEM) Division of Planning and Development is responsible for preparing documents for the selection of architects, engineers and contractors, as well as the preparation of engineering designs for construction. He represents that the Division does not perform any regulatory functions and submits its plans to various state agencies for approval, such as the DEM’s Wetlands Division, the State Building Commission and the Coastal Resources Management Council (CRMC). He indicates that another state worker has asked him to prepare a dock design for his personal use on Hog Island, plans for which must be submitted to the CRMC for its approval. He further advises that he wishes to employ the services of a co-worker in his Division on this project.

Under the Code of Ethics, the petitioner shall not have an interest or engage in any employment or professional activity that is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a) and 7(a). The Code further provides that the petitioner shall not engage in any employment that will impair his independence of judgment as to his official duties or employment. See R.I. Gen. Laws § 36-14-5(b). R.I. Gen. Laws § 36-14-5(d) prohibits him 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. The Code also prohibits him from representing himself or any other person before the agency of which he is a member or by which he is employed and for one year after leaving the public position. R.I. Gen. Law § 36-14-5(e). Finally, Commission Regulation 5011 prohibits individuals subject to the Code from engaging in a financial transaction, including participation in private employment or consulting, with a subordinate over whom he or she exercises supervisory responsibilities in the course of his or her official duties. See Commission Regulation 36-14-5011. However, that prohibition does not apply where the transaction is initiated by the subordinate.

The 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 of 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, among others, the DEM, the Department of Transportation and the Department of Human Services.

In this matter, the petitioner represents that the division of the DEM in which he works does not perform any regulatory functions and submits engineering plans to various agencies to obtain permits, including the CRMC. Since Planning and Development is separate and distinct from divisions exercising regulatory functions, we conclude that the petitioner may submit permit applications and other materials to other divisions of the DEM without violating the relevant provisions of the Code of Ethics. However, the petitioner may not have any personal involvement with a matter before Planning and Development. R.I. Gen. Laws § 36-14-5(e). Additionally, the petitioner may not use any confidential information he obtained while working for Planning and Development. R.I. Gen. Laws § 36-14-5(b), (c), (d). That the petitioner would be required to submit private dock design plans to other state agencies for approval, such as the CRMC, does not implicate the prohibitions contained within the Code of Ethics.

Here, the petitioner wishes to employ the services of a Planning and Development co-worker on a private dock design project. If the prospective employee is not the petitioner’s subordinate within Planning and Development, he may employ him or her without running afoul of the Code of Ethics. Pursuant to Regulation 5011, however, the petitioner may not employ a subordinate co-worker unless the subordinate initiated any inquiry as to the availability of private employment opportunities. The petitioner is reminded that any private engineering work must be performed on his own time and may not involve the improper use of public resources.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(e)

36-14-7(a)

36-14-5011

Related Advisory Opinions:

2000-85

2000-76

99-116

99-102

99-70

98-169

97-78

97-46

97-45

96-31

DR 95-2

Keywords:

Private employment

Transactions with subordinates