Advisory Opinion No. 2003-8

Re: Brandon B. Faneuf


The petitioner, employed by the Department of Environmental Management (DEM) in the Total Maximum Daily Load (TMDL) Program, a state employee position, requests an advisory opinion as to whether he may accept private employment that involves preparation and submission of reports and tests to DEM’s Individual Sewage Disposal System (ISDS) Program.


It is the opinion of the Rhode Island Ethics Commission that the petitioner, employed by the Department of Environmental Management (DEM) in the Total Maximum Daily Load (TMDL) Program, a state employee position, may accept private employment that involves preparation and submission of reports and tests to DEM’s Individual Sewage Disposal System (ISDS) Program.

The petitioner advises that he is employed within the DEM's TMDL Program. The petitioner represents that the TMDL Program is responsible for restoring depredated water bodies within Rhode Island to levels compliant with relevant water quality standards.

The petitioner recently passed an exam given by the DEM's ISDS Program to become a Class IV Soil Evaluator. According to the petitioner, the Class IV Soil Evaluator license authorizes persons to conduct soil evaluations, site evaluations and percolation tests. These tests, which are part of a larger site evaluation, provide information that determines the acceptable types of ISDS's for a particular location. Petitioner asserts that the DEM's ISDS Program, located within the DEM's Office of Water Resources, reviews these completed soil evaluations as part of its approval process. The petitioner states that the ISDS and TMDL programs are very different in nature, and that in his current position in the TMDL program he has little to no contact with the ISDS Program.

The petitioner wishes to engage in private employment either on his own or with a private employer, utilizing his Class IV Soil Evaluator license, to conduct soil and site evaluations, prepare reports and test results, and to submit these reports and results to the ISDS Program at DEM. He asks whether, given his employment in DEM's TMDL Program, such private employment is prohibited by the Code of Ethics.

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. R.I. Gen. Laws § 36-14-5(a). 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 § 36-14-7(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 him 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).

Aside from these general prohibitions, the Code of Ethics provides that the petitioner may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. See R.I. Gen. Laws § 36-14-5(e)(1), (2). 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.

In past opinions, the Commission has held that the provisions of subsection 5(e), relating to the representation of oneself or another before a state agency of which one is employed, may apply more narrowly to specific departments within very large state agencies. For example, in Advisory Opinion 2000-76, the current petitioner (Brandon B. Faneuf) was advised that his employment in the DEM's TMDL Program was no bar to his accepting private employment involving the submission of permit applications and other materials to DEM's Freshwater Wetlands Program. See also A.O. 97-46 (concluding DEM engineer working in Office of Waste Management could submit material for approval to the DEM’s Office of Water Resources and Office of Compliance and Inspection as a private engineer so long as it was ministerial in nature and given that the petitioner did not have contact with the Office of Water Resources and Office of Inspection and Compliance in his position in the Office of Waste Management, nor exercise any supervisory or policy-making authority within the DEM that would extend to and/or affect those offices).

In this matter, the petitioner represents that the program within the DEM in which he works, the TMDL, is very different in nature from DEM's ISDS Program, which would be the focus of his work in the private sector. Because the two programs are separate and distinct within the DEM, we conclude that the petitioner may submit soil and/or site evaluation reports and percolation tests to the ISDS Program without violating the relevant provisions of the Code of Ethics. However, the petitioner may not have any personal involvement with a matter before the TMDL Program of the DEM. Additionally, the petitioner may not use any confidential information he obtains while working for the TMDL Program, or for any division of the DEM, for financial gain to himself, his private employer or business associates. R.I. Gen. Laws § 36-14-5(b), (c) and (d). In particular that means that the petitioner must be careful not to use confidential information gained through his employment at the DEM to his advantage in submitting materials to a to the DEM on behalf of private clients.

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