Advisory Opinion No. 2001-27

Re: Captain Douglas Wilcox

QUESTION PRESENTED

The petitioner, a Captain in the Cranston Fire Department, a municipal employee position, requests an advisory opinion as to whether he may accept private employment with an architect to review plans for submission to another municipality for fire code compliance.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Captain in the Cranston Fire Department, a municipal employee position, may accept private employment with an architect to review plans for submission to another municipality for fire code compliance, provided that 1) he has no involvement with plans subject to his official jurisdiction; 2) he performs such work on his own time and without the use of public resources; and 3) he does not use his position within the Fire Department to recruit potential clients.

The petitioner advises that, as a Captain in the Fire Prevention Division, he performs a large percentage of the Cranston Fire Department’s review of architectural plans for fire code compliance. He has one subordinate and one superior within the Department who also can perform plan reviews. He indicates that an architect has requested that he perform a plan review for fire code compliance involving another municipality. He represents that the architect previously has submitted plans to the Cranston Fire Department for its review and likely will do so again in the future.

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).

In previous advisory opinions, the Commission has given its 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.

Here, the petitioner wishes to accept part-time, private employment that would involve the review of architectural plans for fire code compliance and submission to other municipalities. Given that he would not be acting in matters in his private capacity where he exercises authority in his public capacity, the petitioner would not be in substantial conflict with his duties in the public interest, nor should his judgment be impaired as to his public duties. The Commission concludes that the petitioner may accept such private employment, provided that he has no involvement with plans submitted to the Cranston Fire Department for its review and that all private work is performed on his own time and without the use of public resources. In the event that the petitioner’s private employer submits plans to the Cranston Fire Department, various provisions of the Code of Ethics would require the petitioner to recuse himself from participating in such review. See R.I. Gen Laws §§ 36-14-5(a), (b), (d), (f) and 7(a). Where recusal is required, he may not designate a subordinate within his Department to handle his private employer’s plan review. Notices of recusal should be filed with both the Ethics Commission and the Cranston Fire Department in accordance with R.I. Gen Laws § 36-14-6. The petitioner also is reminded that he may not in any way use his public position to solicit business for himself in his private employment. See R.I. Gen Laws § 36-14-5(d). Finally, there is no representation or indication that the petitioner's involvement with a private employer would have an adverse impact on his public employer owing to the need for frequent recusals. If, however, the petitioner's private employer does or begins to do a large volume of work in Cranston it may be necessary to revisit this situation.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(b)

36-14-5(f)

36-14-5(d)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2001-11

2000-93

2000-27

99-102

99-39

99-37

98-135

98-103

98-110

98-69

98-34

97-98

97-93

97-45

97-39

96-72

96-31

96-55

95-102

95-80

95-50

D.R. 95-2

Keywords:

Private employment

Recusal