Advisory Opinion No. 2001-11

Re: Charma E. Clay

QUESTION PRESENTED

The petitioner, an industrial hygienist at the Department of Health, a state employee position, requests an advisory opinion as to whether she may accept private employment as a trainer and/or consultant, specifically targeting the areas of asbestos, lead paint, occupational safety, indoor air quality and environmental consulting, given that none of her proposed private employment would involve interaction with the Department of Health or intersection with her duties and responsibilities in her public employment.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, an industrial hygienist at the Department of Health, a state employee position, may pursue private employment as a trainer and/or consultant related to the specified fields while maintaining her public employment. We further conclude that, subject to the limitations set out below, she may have limited contact with the other divisions/programs in the Department of Health, in that private employment.

The petitioner represents that the she works for the Department of Health as an industrial hygienist in the Division of Occupational and Radiological Health's Radiation Control Program. Her duties as an industrial hygienist are limited to conducting compliance inspections at facilities with registered x-ray equipment. The facilities she inspects are those of veterinarians, podiatrists, chiropractors, general x-ray facilities and dentists. She previously worked in the Department of Health's Childhood Lead Poisoning Prevention Program, but no longer has any involvement with that program.

The petitioner further represents that she is interested in pursuing private consulting/employment opportunities such as: conducting training classes for private consultants and for colleges, including public institutions; training providers in fields such as asbestos, lead, occupational safety and hazardous waste; consult with private parties regarding asbestos compliance and related issues, lead paint compliance and related issues, occupational safety, and environmental site/hazardous waste issues. The petitioner represents, and our review confirms, that the private employment opportunities listed by the her do not directly relate to her current public employment. She also states that her public position would not provided her with the opportunity to refer clients to herself in the private sector, that she would have no special access to information in her public position that could be used in her private employment, and that she would not appear before her current division within the Department of Health in her private capacity. Finally, the petitioner advises that her supervisors at the DOH are aware of her request and do not oppose the outside employment she proposes here.

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 that 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 there may be instances when she interacts with the Department of Health, either directly or through assistance given to an entity that employs her as a consultant. That involvement would be with programs other than the one in which she works and, as represented by the petitioner, her program is a separate and distinct unit within the DOH, giving her minimal interaction with other DOH programs and divisions, and no authority over those other programs or divisions.

Involvement with other divisions within the Department of Health, or with other programs within her division, is not prohibited by the Code of Ethics, as discussed above, with the following exceptions. The petitioner may not have involvement with the program in which she is currently employed and, in fact, she represents that the nature of her proposed private employment would not involve that program. In addition, for a period of one year after her separation from the Childhood Lead Poisoning Program she may not appear before that program owing to the revolving door prohibitions in section 5(e).

Finally, the petitioner may not use her public position, public time or resources, or confidential information obtained during the course of her 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:

2000-76

2000-27

99-102

99-70

99-39

98-169

98-154

98-103

97-98

97-93

97-1

96-31

D.R. 95-2

Keyword(s):

Private Employment