Advisory Opinion No. 2003-7

Re: Jessica A. Smith

QUESTION PRESENTED

The petitioner, an environmental scientist employed by the Department of Environmental Management (DEM) in the Freshwater Wetlands Program, a state employee position, requests an advisory opinion as to whether she may accept private employment as a wetlands scientist for Natural Resource Service (NRS) while retaining her current employment with the DEM.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, an environmental scientist employed by the RI Department of Environmental Management (DEM) in the Freshwater Wetlands Program, a state employee position, may accept private employment as a wetlands scientist while retaining her current employment with the DEM. We further conclude that, subject to the limitations set out below, she may have contact with the other divisions/programs in the DEM or with the Coastal Resource Management Council (CRMC) in her private employment.

The petitioner represents that she is currently employed two days per week as an environmental scientist with the DEM. She states that her job responsibilities for the DEM include handling individual applications submitted to the Freshwater Wetlands Program and making recommendations to her supervisor. In that capacity, she represents that she performs fieldwork to determine the presence of freshwater wetlands and to verify the edge of a flagged wetlands. Additionally, she completes inspection reports and drafts letters to the applicants.

The petitioner represents that she would like to gain employment with a private company, Natural Resource Services (NRS), as a wetlands scientist. She states that her responsibilities would include wetland delineations and habitat analysis for submission to the CRMC Wetlands Program. Further, the petitioner states that she would recuse on the review of all applications submitted by NRS to the DEM Freshwater Wetlands Program and all such matters would be handled by a person who is not her subordinate. Additionally, the petitioner informs that in 1999, the DEM relinquished jurisdiction of some of the state’s freshwater wetlands to CRMC. As a result, the DEM and the CRMC both have segments of jurisdiction over the state's freshwater wetlands. The jurisdictional line is determined by road and highway demarcations. Therefore, only one agency has sole jurisdiction over applications. As such, the petitioner represents that she would not perform wetland delineation or submit applications on behalf of NRS to the DEM Freshwater Wetlands Program.

Under the Code of Ethics, the petitioner may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if she has reason to believe or expect that she or any family member or business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. See R.I. Gen. Laws § 36-14-7(a). Additionally, the Code provides that the petitioner shall not accept other employment that will either impair her independence of judgment as to her official duties or induce her to disclose confidential information acquired by her in the course of and by reason of her official duties. See R.I. Gen. Laws § 36-14-5(b). Further, she may not use her public office or information received from her public office to obtain financial gain, other than that provided by law, for herself, a family member, business associate or private employer. See R.I. Gen. Laws § 36-14-5(d).

In an analogous opinion, the Commission found that a wetlands scientist employed by the Department of Environmental Management in the Total Maximum Daily Load (TMDL) Program may accept private employment as a wetlands scientist while retaining his current employment and in that private employment he may have contact with the other divisions/programs in the DEM. See e.g. A.O. 2000-76.

Additionally, in previous advisory opinions, the Commission has given its approval for a state employee to accept outside employment, provided that (a) the employee’s official duties for her agency do not directly relate to her private employment; (b) she completes the work before or after her normal working hours; and (c) the employee does not appear before her 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); A.O. 97-98 (advising Superior Court Clerk that she could accept other employment as long as she did not receive special access of information from the Court in performing her private employment).

The Commission concludes that the petitioner may accept employment as a wetlands scientist with Natural Resource Services, provided that all work is performed on her own time and without the use of public resources. The petitioner represents that she would not be appearing before the DEM Freshwater Wetlands Program and would recuse on all applications submitted by Natural Resource Services. In such instances, notice of recusal should be filed with both the Ethics Commission and the DEM in accordance with R.I. Gen. Laws § 36-14-6. Given that she would not be acting in matters in her private capacity where she exercises authority in her public capacity for the DEM, she would not be in substantial conflict with her duties in the public interest nor should her judgement be impaired as to her public duties.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2003-3

2002-50

2001-11

2000-76

99-102

99-70

99-39

98-169

98-154

98-103

97-98

97-93

97-1

96-31

Keywords:

Private Employment