Advisory Opinion No. 2005-52 Re: David W. Schweid, AICP QUESTION PRESENTED: The petitioner, a part-time Town Planner for the Town of Exeter, a municipal appointed position, requests an advisory opinion as to whether he may accept work as a consultant on two projects for either the Exeter Town Council or the Exeter Planning Board. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a part-time Town Planner for the Town of Exeter, a municipal appointed position, may accept work as a consultant on two projects for the Exeter Town Council and the Exeter Planning Board. The petitioner informs that he is a part-time Town Planner for the Town of Exeter. He represents that in this position he works twenty hours a week, including two days in the ExeterTown Hall and night meetings as required. The petitioner maintains that he is very busy now working twenty hours a week to accomplish his duties as the part-time Town Planner. Furthermore, the petitioner informs that he is paid a monthly stipend for this part-time employment as Town Planner and that he does not receive any other benefits such as medical insurance, holidays, or sick time. He states that he was appointed by the Exeter Town Council to this position and that he is entering his fifth year in this position. Additionally, he informs that, as the part-time Town Planner, he works for the Exeter Planning Office. At the request of the Exeter Town Council President, the petitioner informs that he has started working additional hours as the Town Planner on a project to develop a zoning regulation for the Town of Exeter that would allow for age-restricted housing within the Town of Exeter. He informs that the Town is paying him at his current Town Planner hourly rate to conduct work on this project. The petitioner maintains that, in his own time, he provides planning consulting services to a variety of public and private clients, primarily in Connecticut where he resides and where his Land Use Planning Services office is located. In this capacity, the petitioner informs that he is on a list compiled by the Exeter Town Council of pre-qualified consultants. During telephone conversations with Commission Staff, the petitioner informed that he is requesting an advisory opinion to determine whether he may accept work as a consultant on two projects with either the Exeter Town Council or the Exeter Planning Board. The petitioner represented that the first project is to write a zoning amendment to allow for second floor residential apartments above commercial structures. He represents that Exeter does not currently permit such apartments although Exeter’s Affordable Housing Plan commits the Town to have them and this commitment must be met within a year. The petitioner informed that the second project is to write a regulation for village development areas to allow for mixed-use development as described in Exeter’s Affordable Housing Plan. The petitioner also represented that Exeter does not currently permit such development although Exeter’s Affordable Housing Plan commits the Town to allow for it and that this commitment also must be met within a year. The petitioner informs that he will not solicit this consulting work from either the Exeter Town Council or Exeter Planning Board as the part-time Exeter Town Planner. The petitioner informs that while these upcoming projects must be completed by the Town in the near future, he is not yet aware of whether the Town Council or the Planning Board will spearhead working on them. He maintains that both the Town Council and Planning Board hire consultants to perform such work, and that such consultants are selected from the pre-qualified consultant list compiled by the Town Council, on which he is listed. He also informs that the Planning Board has its own budget to pay for such consulting work. 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). Furthermore, 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 of Ethics 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). In certain circumstances, the Commission has given its approval to public employees to accept outside employment after considering whether the public employee’s official duties related to his private employment, the public employee completed such work outside of his normal working hours, and the public employee did not appear before his own agency regarding such work. See, e.g., A.O. 2005-15 (opining that 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); A.O. 2004-24 (opining that a 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). Here, the petitioner represents that he will accept part-time consulting work for the Town of Exeter on two specific projects. He maintains that such work will be project-based planning work that will not directly relate to his work as the part-time Exeter Town Planner. He informs that he will complete such work on his own time without public resources. 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 the part-time Town Planner. 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 Town or to solicit consulting work for himself, the petitioner may accept work as a consultant on these two projects for either the Exeter Town Council or the Exeter Planning Board. The petitioner is advised that this opinion solely addresses the application of the Code of Ethics, and does not, and cannot, address whether any other policies, regulations, rulings, Town Charter provisions, or statutes prohibit such simultaneous employment. Code Citations 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-7(a) Regulation 36-14-7001 Related Advisory Opinions 2005-15 2004-24 Keywords Private employment