Advisory Opinion No. 2006-8

Advisory Opinion No. 2006-8

Re: David P. Florio

QUESTION PRESENTED

The petitioner, a Probation and Parole Supervisor, a state employee position, requests an advisory opinion regarding whether the Code of Ethics permits him to accept a part-time position to provide counseling and administrative services to a private counseling program.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Probation and Parole Supervisor, a state employee position, may not accept a part-time position to provide counseling and administrative services to a

private counseling program, given that such employment raises concerns under sections 5(a) and 5(b) of the Code of Ethics. 

The petitioner represents that for the last five years he has held the full-time position of Probation and Parole Supervisor with the Rhode Island Department of Corrections (RIDOC).  He informs that there are seven Probation and Parole Supervisors within the RIDOC.  He relates that he alone supervises the state-wide high risk sex offender probation unit.  He represents that there are approximately 1,400 sex offenders in Rhode Island and that approximately 687 of them are high risk offenders that are placed in his unit.  He informs that there are other sex offenders receiving probation in Rhode Island outside of his unit; however, he states that those offenders are not considered high risk. 

As a Probation and Parole Supervisor, the petitioner states that he supervises nine probation officers that oversee the rehabilitation of sex offenders placed on probation by the Rhode Island Superior Court and Rhode Island District Court.  The petitioner represents that his primary responsibility as Supervisor is to mange and assist the nine probation officers subordinate to him.  He informs that he assists these probation officers with probation compliance, standard operation procedures, paperwork, and administrative and procedural requirements.  He states that he reviews all probation violations and presentment reports (essentially violation reports) prepared by his subordinate probation officers.  He informs that these reports are sent to the Attorney General’s Office requesting a probation review or a warrant.  The petitioner also represents that he discusses individual cases with his subordinate officers when problems arise or when the officers have specific questions.  The petitioner represents that he has no direct interaction with the offenders assigned to the nine probation officers subordinate to him and that he has no caseload of his own.

The petitioner informs that the Rhode Island Batterers Intervention Program (RIBIP), a private agency owned by George Sheehan located in Cranston, is looking to expand their services to include group counseling of sexual offenders.  The petitioner states that this program has asked him if he would be willing to provide part-time sex offender group counseling in the evenings as a recognized clinical practitioner by the Association for the Treatment of Sexual Abusers.  In this capacity, the petitioner represents that his duties would be to provide outpatient group counseling for individuals with sexual abuse issues.  The petitioner represents that he would also provide administrative assistance to the program by assisting George Sheehan in setting up the program’s education curriculum and handouts, session structure, and other organizational aspects of the program. 

The petitioner informs that the sex offenders receiving outpatient group counseling from the RIBIP will be on Rhode Island Probation and Rhode Island Parole and court ordered treatment.  He represents that his subordinate RIDOC probation officers provide the large majority of the probation services given to the sex offenders receiving counseling services from the RIBIP.  He informs, however, that neither he, as the Probation and Parole Supervisor, nor his subordinate probation officers assign counseling to offenders. 

Rather, the petitioner informs that his subordinate officers refer offenders to specific counseling programs after a court assigns probation to a high risk sex offender that includes counseling.   To make this referral, the petitioner relates that the officer and offender meet and determine which counseling program is most suitable to the offender, which may include RIBIP.  Thereafter, the officer refers the offender to that program.  The petitioner also informs that his subordinate probation officers can recommend that an offender receive counseling such as RIBIP when their probation is under review or when there is a probation violation.  Additionally, the petitioner relates that an officer can refer offenders to RIBIP if they volunteer to receive such treatment. 

As a Probation and Parole Supervisor, the petitioner informs that he does not directly monitor such counseling services as that provided by RIBIP.  Additionally, the petitioner represents that his subordinate officers only monitor whether an offender has complied with their required counseling.  Specifically, the petitioner informs that his subordinate officers review the compliance information sent to them directly from RIBIP.  The petitioner informs that if a subordinate officer asks him a question about these services as the Probation and Parole Supervisor, he will advise the officer to contact RIBIP directly.   The petitioner explains that the current protocol for obtaining counseling information does not involve him as all such counseling information is made available by the agency providing counseling and that, in the case of RIBIP, the Director of RIBIP or its clerical staff provides such information to his probation officers.  He further explains that RIBIP’s counselors have no direct contact with RIDOC officers because the RIBIP’s counselors provide counseling information directly to the RIBIP’s Director and clerical staff, who contact the probation officers.  Accordingly, the petitioner informs that as a RIBIP counselor he would have no contact with RIDOC officers as each only communicates with the RIBIP Director or its clerical staff.  The petitioner informs that he notified the RIBIP that he would not respond to their offer until he received advice from the Rhode Island Ethics Commission. 

Under the Code of Ethics, 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 the public official’s activity, to the official, a family member, a business associate or employer.  R.I. Gen. Laws § 36-14-7(a); Regulation 7001.  The Code of Ethics defines a business associate as an individual or business entity joined with an official to achieve a common financial objective.  See R.I. Gen. Laws §§ 36-14-2(3) and 2(7).

Pursuant to section 36-14-5(b) of the Code of Ethics, the petitioner may not accept other employment which would impair his independence of judgment or require him to disclose confidential information acquired in the course of his official duties.  Additionally, the Code of Ethics prohibits the petitioner 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, a business associate or employer.  R.I. Gen. Laws § 36-14-5(d).

Once the petitioner accepts employment with RIBIP he will become its business associate.  Pursuant to section 5(a), the petitioner therefore may not act in his official capacity as a Parole and Probation Supervisor in a manner that would lead to a direct financial impact to RIBIP, his business associate.  See, e.g., A.O. 2005-64 (opining that a member of the Burrillville Redevelopment Agency may not participate in discussions or vote on matters coming before the Burrillville Redevelopment Agency regarding a nonprofit developer’s request for approval of a project in a redevelopment district, given that the project will financially impact his business associate).

As a Probation and Parole Supervisor, the petitioner represents that he oversees the work of his subordinate officers and that that these officers’ work includes referring offenders to programs such as RIBIP.  The petitioner represents that he is not directly involved in such referrals and that he would not discuss counseling programs, such as RIBIP, with his subordinate officers.  Nonetheless, it is clear that RIBIP will be financially impacted by referrals the petitioner’s subordinate officers make to RIBIP.  Accordingly, given the petitioner’s authority as Supervisor over his subordinate officers’ work, the Commission opines that it remains reasonably foreseeable that the petitioner and RIBIP would be financially impacted by the petitioner’s oversight of his subordinate officers who refer offenders to RIBIP. 

Additionally, pursuant to section 5(b), the petitioner may not accept employment at RIBIP if it will impair his independence of judgment as to his official duties as a RIDOC Supervisor.  In past advisory opinions, the Commission has evaluated whether such impairment exists in the context of whether RIDOC employees may provide private counseling services.  In this context, the Commission has opined that a RIDOC Counselor may participate in private employment to provide counseling services after determining that their work remained separate and distinct and their counseling services did not involve individuals on their RIDOC caseload.  See, e.g., A.O. 2001-77 (opining that a RIDOC Probation and Parole Counselor, a state employee position, may accept private employment facilitating domestic violence group sessions at the CODAC Treatment Centers, provided that she does not participate in activities at CODAC, including paperwork and/or discussions, where individuals on her RIDOC probation caseload are involved); A.O. 96-72 (opining that a RIDOC Probation and Parole Counselor may be simultaneously employed by the Kent House as a counselor provided that he does not participate in activities at the Kent House, including paperwork or discussion, where his Probation/Parole clients are involved or that he recuses himself from participation in his role as Probation/Parole Officer involving Kent House clients).

Here, the petitioner is a RIDOC Supervisor, not a RIDOC Counselor, and he represents that he has no caseload at RIDOC.  Nonetheless, the Commission underscores that the petitioner remains ultimately responsible for his subordinate officers’ caseload work, including referrals to RIBIP, and that the RIDOC chain of command positions him to be influential and closely associated with the work conducted by his subordinates on their caseloads, which involves referrals to RIBIP.  The Commission emphasizes that the caseloads of his subordinate officers are essentially his caseloads given his supervisory authority over them and points out that this work includes referrals to RIBIP.   The Commission determines that the petitioner’s employment with RIBIP is not separate and distinct from his RIDOC Supervisor position because his RIDOC subordinates would essentially be sending his employer, RIBIP, work through their referrals. The Commission therefore opines that the petitioner’s employment at RIBIP raises concerns under section 5(b) about the petitioner’s independence of judgment in his official capacity as a Supervisor over his subordinate officers’ who refer work to RIBIP, his business associate.

Accordingly, due to the aforementioned concerns raised under sections 5(a) and 5(b) of the Code of Ethics, the Commission opines that the petitioner may not accept employment with RIBIP.

Code Citations:

36-14-2(3)   

36-14-2(7)

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-7(a)

Regulation 7001

Related Advisory Opinions:

2005-64

2001-77

96-72

Keywords:

Private employment