Advisory Opinion No. 2005-15 Re: James D. McGinn, P.E. QUESTION PRESENTED: The petitioner, a Principal Civil Engineer employed by the Rhode Island Department of Environmental Management (RIDEM), a state employee position, requests an advisory opinion as to whether he may accept part-time employment with a private firm that submits work to the RIDEM. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Principal Civil Engineer employed by the RIDEM, a state employee position, may accept part-time employment with a private firm that submits work to the RIDEM. The petitioner informs that he is a Principal Civil Engineer for the Division of Planning and Development, which is located within the RIDEM’s Planning and Administrative Service Bureau. He advises that his Division handles the RIDEM’s Land Acquisition Program, Natural Heritage Program, capital development projects for the RIDEM facilities, and the administration of grants to municipalities. The petitioner represents that his duties at the RIDEM include design work, construction oversight, and project management for capital development projects. He informs that in this position he deals directly with consultants and contractors who perform public works projects for the RIDEM. The petitioner also advises that part of his official duties include representing the Operations Divisions of the RIDEM’s Natural Resources Bureau in front of state and federal regulatory agencies. The petitioner informs that these agencies include the Rhode Island Coastal Resources Management Council, the regulatory divisions of the RIDEM, the Rhode Island Department of Transportation, the Rhode Island Building Code Commission, and the United States Army Corps of Engineers. The petitioner advises that he would like to accept part-time employment doing design, drafting, and plan preparation, as an employee of a private firm that submits work to the RIDEM. He advises that some of the plans he will work on for the firm may be submitted to the RIDEM’s regulatory divisions by the firm. He informs that, before such plans are submitted, the proprietor of the firm will review them. The petitioner informs that none of his plans for the firm will bear his professional engineer’s stamp or his name, and that he will have no direct contact with (by phone or written correspondence, by attending meetings with, or by testifying before) any state regulatory body regarding them, including RIDEM. The petitioner represents that the firm would be responsible for reviewing, stamping, and preparing such work for any regulatory applications and submissions, and that the firm’s proprietor will be responsible for the entire design and regulatory submission. He further advises that he will not represent the firm’s clients in front of any state regulatory body, including RIDEM, and that any questions posed by state regulators on his work will be addressed to the firm and answered by its proprietor. In addition, the petitioner represents that his work for the firm will not be related to his official duties because his Division of the RIDEM has no involvement with the firm. He informs that he will not solicit work for the firm. Moreover, the petitioner states that he will perform all of his work for the firm on his own time and without public resources. Under the Code of Ethics, a public official may not accept other employment that will either impair the independence of his judgment as to his official duties or employment, or that would require him to disclose confidential information acquired in the course of his official duties. R.I. Gen. Laws § 36-14-5(b). In addition, a public official 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 public official will have an interest in substantial conflict with his official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his activity, to himself, a family member, a business associate, or any business by which he is employed or which he represents. R.I. Gen. Laws § 36-14-7(a); Regulation 36-14-7001. The Code also provides that a public official may not use his office to obtain financial gain for himself, a family member, a business associate, an employer, or any business that he represents. R.I. Gen. Laws § 36-14-5(d). The Code prohibits the petitioner from representing himself, or any other person, or acting as an expert witness before any state agency by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1)-(3). Furthermore, a public official must recuse himself from participating in a matter in which his business associate appears before the state agency by which he is employed. R.I. Gen. Laws § 36-14-5(f). In previous advisory opinions, the Commission has given its approval to public employees to accept outside employment provided that (1) the public employee’s official duties did not directly relate to his private employment, (2) the public employee completed such work outside of his normal working hours, and (3) the public employee did not appear before his own agency. See A.O. 2004-24 (member of City of Cranston Fire Department, a municipal employee position, and an Assistant Deputy State Fire Marshal, a state appointed position, may provide consulting services relating to fire safety and code compliance outside of Cranston). In Advisory Opinion 2003-51, the Commission clarified that section 5(e) prohibits public officials from representing other persons before any office, section, program, or division of the state agency by which they are employed. Here, the petitioner represents that his part-time work would not relate to his official duties, that he would complete the work on his own time without public resources, and that he would not appear before any division of the RIDEM regarding this work. The petitioner’s representations provide no indication that his performance of this part-time work would be in substantial conflict with, or impair his judgment as to, his public duties as a state employee of the RIDEM. Accordingly, the Commission opines that, provided that the petitioner adheres to his representations, and does not use his position to gain special access to information maintained by the RIDEM or to solicit work for the firm, the petitioner’s part-time work would be in compliance with the Code of Ethics. The petitioner is advised that this opinion solely addresses the Code of Ethics and does not, and cannot, address whether the RIDEM policies or regulations, or any other statutes, rulings or policies prohibit such simultaneous employment. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-5(e)(1)-(3) 36-14-5(f) 36-14-7(a) Regulation 36-14-7001 Related Advisory Opinions: 2003-67 2003-51 2003-28 Keywords: Private employment