Advisory Opinion No. 2005-44

Re: William Facente

QUESTION PRESENTED:

The petitioner, the Housing Officer for the City of Warwick’s Office of Housing & Community Development, a municipal employee position, requests an advisory opinion as to whether, in his private capacity, he may sell real estate or make real estate referrals within the City of Warwick.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Housing Officer for the City of Warwick, a municipal employee position, may sell and make real estate referrals within the City of Warwick provided that he does so in his private capacity and does not use public resources or confidential information obtained as part of his employment with the City of Warwick.

The petitioner represents that he is the Housing Officer for the City of Warwick’s Office of Housing & Community Development. He advises that his primary duties are to manage the Home Improvement Loan fund which provides low interest loans to low to moderate income City of Warwick property owners for home improvements, lead abatement and sewer connections. The petitioner further advises that he reports directly to the Program Coordinator who oversees the general management of the office.

The petitioner informs that he is interested in working part-time as a real estate agent in Rhode Island. He is concerned that if he were to sell real estate within the City of Warwick or to make real estate referrals to other licensed real estate agents regarding property located in the City of Warwick that it would be a violation of the Code of Ethics. In a subsequent telephone conversation, the petitioner represented that his private, real estate work would not involve, in any way, properties that were related to matters pending before the Office of Housing and Community Development. He further stated that he would recuse from any matters in his public employment that relate to properties or clients from his private, real estate work. Finally, the petitioner represented that he will not use municipal resources of any kind for his private 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 which 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. R.I. Gen. Laws §§ 36-14-5(a), 7(a). The Code prohibits the petitioner from accepting other employment which will either impair his independence of judgment as to his official duties or employment, or that will require 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). Additionally, the petitioner 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 his is employed or represents. R.I. Gen. Laws § 36-14-5(d).

In previous advisory opinions, the Commission has opined that Department of Corrections’ parole and probation counselors could accept private employment as group counselors for individuals on parole and probation, provided that they did not participate in activities in their private employment where their public clients were involved. See A.O. 97-45 (opining that a DOC Community Program Counselor may accept private employment as a group counselor for men who are on probation, parole, and electronic monitoring provided that she does not participate in activities in her private employment where her inmates are involved and that she does not accept private clients who have a reasonable likelihood of having professional contact with her in her public capacity); A.O. 96-72 (finding that a DOC Probation/Parole Officer may accept private employment as a counselor at Kent House provided that he does not participate in activities at the Kent House where his public clients are involved).

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(c)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

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