Advisory Opinion No. 2001-46

Re: Christopher C. Moy

QUESTION PRESENTED

The petitioner, a Bristol Police Officer assigned to the Detective Division, a municipal employee position, requests an advisory opinion as to whether he may assist a private investigator in reviewing a criminal matter under the jurisdiction of the Massachusetts District Attorney’s Office.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Bristol Police Officer assigned to the Detective Division, a municipal employee position, may assist a private investigator in reviewing a criminal matter under the jurisdiction of the Massachusetts District Attorney’s Office, provided that 1) he has no involvement with matters subject to the Bristol Police Department’s official jurisdiction; 2) he does not disclose any confidential information he obtained in the course of his employment with the Police Department; and 2) he performs such work on his own time and without the use of public resources.

The petitioner has been a member of the Bristol Police Department for eleven years and currently is assigned to the Detective Division. He advises that the family of Kenneth Waters, who recently was released from a Massachusetts prison after 18 years of incarceration, has asked him to assist a private investigator in conjunction with the New England Chapter of Project Innocence. Through the efforts of Project Innocence and Mr. Water’s sister, he was released on bail pending further review by the Massachusetts District Attorney’s Office. The petitioner indicates that the Waters family would like him to work with a licensed investigator in conjunction with Project Innocence and obtain DNA samples from relatives of the individual they believe committed the crime for comparison to evidence from the crime scene. He represents that he would not use any law enforcement databases or computer systems. He further advises that all of the investigative work would be conducted in Massachusetts under the license of a private investigator. He indicates that he would perform an advisory role and review the case and what direction the investigation should take.

The Code of Ethics provides that the petitioner may 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), 7(a). The Code further provides that the petitioner shall not engage in any employment that would impair his independence of judgment as to his public duties. See R.I. Gen. Laws § 36-14-5(b). He also is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d).

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 private employment that would involve assisting a private investigator in the review of a criminal matter under the jurisdiction of the Massachusetts District Attorney’s Office. He represents that the investigative work would be conducted in Massachusetts under the license of a private investigator. 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. Therefore, the Commission concludes that he may accept such private employment, provided that all work is performed on his own time and without the use of public resources. Further, the petitioner may not disclose any confidential information he obtained in the course of his employment with the Bristol Police Department, including information from law enforcement databases. Finally, he is reminded that he may not in any way use his public position to solicit business for any private employment. See R.I. Gen Laws § 36-14-5(d).

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

2001-31

2001-27

2000-93

2000-27

99-102

98-135

98-110

98-69

97-98

97-39

96-31

DR 95-2

Keywords:

Private employment