Advisory Opinion No. 2003-28

Re: Matthew B. Smith

QUESTION PRESENTED

The petitioner, a part-time attorney for the Rhode Island Department of Administration, Office of Labor Relations, a State employee position, requests an advisory opinion regarding whether he may accept private work as a legislative lobbyist before the General Assembly on behalf of Spielo Gaming International, a gaming corporation that operates and maintains a number of video lottery terminals at Lincoln Park and Newport Grand Jai Alai.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a part-time attorney for the Department of Administration, Office of Labor Relations, a State employee position, may accept private work as a legislative lobbyist before the General Assembly on behalf of Spielo Gaming International.

The petitioner represents that he is employed by the Department of Administration, Office of Labor Relations as part-time, in-house legal counsel. He informs that his primary duty in that capacity is to defend and represent the Department of Administration before the Personnel Appeal Board. The petitioner's duties also include representing the Department in employee disciplinary matters and hearings. The petitioner states that his duties do not include any form of interaction with the legislature or with legislators. He asks whether, given these representations, he may accept private employment lobbying the Rhode Island legislature on behalf of a private corporation.

Under the Code of Ethics, a state employee may not accept other employment that will either impair his independence of judgment as to his official duties or employment or require him to disclose confidential information acquired by him in the course of his official duties. R.I. Gen. Laws § 36-14-5(b). He 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. R.I. Gen. Laws § 36-14-5(e)(1), (2). He is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents. R.I. Gen. Laws § 36-14-5(d). He may not participate in any matter in which he has an interest, financial or otherwise, which 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 he 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).

Provided that the petitioner engages in the aforedescribed, private employment on his own time and without the use of public resources, there is no indication that this private employment is in substantial conflict with the petitioner's public duties representing the Department of Administration in personnel and disciplinary matters. Nor does it appear likely that such private employment would impair his independence of judgment as to his official duties or require him to disclose confidential information. Furthermore, the petitioner represents that his lobbying activity is limited to the legislative branch, so that will not be representing himself or any other person or business before his own department. For these reasons, the Code does not prohibit the petitioner from accepting private work as a legislative lobbyist.

The petitioner is cautioned, however, that it is conceivable that a member of the General Assembly may at some point become involved, as a party, attorney or in some other capacity, in a matter he is working on as an attorney for the Department of Administration. In that circumstance, the petitioner is advised to either recuse from participation in such matter or to seek further advice from the Commission.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(e)

36-14-7(a)

Related Advisory Opinions:

2001-26

99-45

96-11

Keywords:

Private Employment

Lobbying