Advisory Opinion No. 2002-34

Re: Thomas E. Armstrong

QUESTION PRESENTED

The petitioner, a Principal Environmental Planner employed by the Department of Environmental Management, a state employee position, requests an advisory opinion as to whether he may accept private employment as a collection coordinator for Safety-Kleen at events held at Rhode Island Resource Recovery Corporation’s Johnston facility.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Principal Environmental Planner employed by the Department of Environmental Management, a state employee position, may accept private employment as a collection coordinator for Safety-Kleen at events held at the Rhode Island Resource Recovery Corporation’s Johnston facility.

The petitioner is a Principal Environmental Planner in the Department of Environmental Management (DEM), Office of Strategic Planning & Policy. The DEM has jurisdiction over natural resource management and environmental protection and regulation. He advises that his Office provides related support on environmental planning, policy preparation and review, and reports on emerging environmental issues. He represents that until June 2001, he managed the DEM’s household hazardous waste program, including its Providence collection facility. The hazardous waste operation contractor for the Providence facility was Safety-Kleen Corporation. The petitioner’s program had responsibility for contract management and supervision of Safety-Kleen. Safety-Kleen was responsible for all aspects of work conducted at household hazardous waste collections, as well as preparation of reports and training of DEM staff.

In July 2001, the DEM transferred the household hazardous waste program to the Rhode Island Resource Recovery Corporation (RIRRC), to be operated by RIRRC at its Johnston facility. The RIRRC selected Safety-Kleen as the contractor for their facility through a competitive RFP solicitation process in April 2001. At RIRRC’s request, the petitioner served on the RFP technical review committee that evaluated and ranked all proposals and recommended Safety-Kleen to the RIRRC Board of Commissioners. The petitioner advises that the DEM no longer has a role in household hazardous waste management and operations. He indicates that Safety-Kleen recently contacted him and proposed part-time employment at RIRRC’s Johnston facility, which would involve checking in program participants, verifying information and answering questions regarding the program and household hazardous waste. All collections are held on Saturdays. The petitioner informs that he currently has no involvement with Safety-Kleen in his DEM employment.

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. See 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 him to disclose confidential information acquired by his in the course of and by reason of his official duties. See R.I. Gen. Laws § 36-14-5(b). Further, he may not use his public office or information received from his public office to obtain financial gain, other than that provided by law, for himself, a family member, business associate or private employer. See R.I. Gen. Laws § 36-14-5(d). Finally, a public official or employee may not accept any reward or promise of future employment in return for or based on any understanding or expectation that his or her vote, official action or judgment would be influenced thereby. See R.I. Gen. Laws § 36-14-5(g).

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, inter alia, that state employees who did not serve process in their official capacities and were not employed by an agency 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.

The Commission concludes that the petitioner may accept part-time private employment with Safety-Kleen, provided that all work is performed on his own time and without the use of public resources. His present employment with the DEM does not involve Safety-Kleen and/or household hazardous waste programs, as the DEM previously transferred the entire program to the RIRRC. The proposed employment would not involve the use of public time, as all collections are held on Saturdays. Given that he would not be acting in matters in his private capacity where he exercises authority in his public capacity for the DEM, he would not be in substantial conflict with his duties in the public interest nor should his judgment be impaired as to his public duties. Finally, the Code prohibits public officials and employees from accepting a promise of future employment based on any understanding that an official action or judgment of the person would be influenced thereby. R.I. Gen. Laws § 36-14-5(g). Here, there is no indication that the proposed employment relates to the petitioner’s April 2001 bid review for the RIRRC. Absent such evidence, the Code of Ethics does not otherwise prohibit his private employment by Safety-Kleen.

Code Citations:

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

Related Advisory Opinions:

2001-46
2001-11
2000-76
2000-27
99-102
99-39
98-169
98-154
98-135
98-103
97-98
97-93
97-1
96-31
D.R. 95-2

Keywords:

Private Employment