Advisory Opinion No. 2006-17 Advisory Opinion No. 2006-17 Re: Lieutenant Stephen J. Enos QUESTION PRESENTED The petitioner, a Lieutenant on the East Providence Police Department, assigned as a Shift Commander in the Patrol Division, a municipal employee position, requests an advisory opinion as to whether he may apply for a private investigator’s license and operate said business in the City of East Providence while an active member of the police department. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Lieutenant on the East Providence Police Department, assigned as a Shift Commander in the Patrol Division, a municipal employee position, may apply for a private investigator’s license and operate said business in the City of East Providence provided that (1) he has no involvement with matters subject to the East Providence Police Department’s official jurisdiction; (2) he does not disclose any confidential information he obtained in the course of his employment with the Police Department; (3) he performs such work on his own time and without the use of public resources, including law enforcement databases; (4) he does not use his position as a police officer to obtain clients or private work; and (5) he does not accept any cases or perform any work within the City of East Providence for as long as he is employed by the East Providence Police Department. The petitioner has been a member of the East Providence Police Department for twenty-three (23) years and is currently assigned as a Shift Commander in the Patrol Division. He holds the rank of Lieutenant. The petitioner informs that as a Shift Commander he is the Officer in Charge for any one of the three (3) shifts in the Patrol Division. The petitioner relates that in the course of his duties he oversees the operation of the uniform patrol division primarily from police headquarters. The petitioner advises that his other duties include: staffing, police report review and overall direction of the initial police response to calls for service, and supervising officers to ensure that they comply with departmental rules and regulations, the Rhode Island General Laws, and Federal Constitutional guidelines. The petitioner informs that to accomplish these tasks, he utilizes the police department’s Record Management System and NCIC which provide access to State and Federal Criminal databases. The petitioner further represents that his access to these databases can be monitored by the department’s commanding officers. The petitioner is considering applying for a private investigator’s license which must be approved by the East Providence City Council since the petitioner intends to operate his business from his East Providence residence. The petitioner represents the following: (1) he would perform all work on his own time; (2) he would not use any public resources of his full-time employer, including law enforcement databases, nor would he direct others to access said databases; (3) he would not use his position as a police officer to obtain clients or private work; and, (4) he would not accept any cases or perform any work within the City of East Providence for as long as he is employed by the East Providence Police Department. The Code of Ethics provides that the petitioner may not have an interest or engage in any employment or professional activity that is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a). The petitioner will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(a). The Code further provides that the petitioner shall not engage in any employment that would impair his independence of judgment as to his public duties. See R.I. Gen. Laws § 36-14-5(b). He also is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d). In a past advisory opinion, the Commission opined that the issuance of private investigator licenses to police officers employed by the Town of Jamestown would be a violation of the Code of Ethics since those officers have access to confidential information developed on behalf of the public in pursuit of protecting the public interest. The Commission further found that any confidential information should be protected from those who would develop it or use it with an eye toward private or pecuniary gain. See A.O. 95-5. After the 1995 opinion, the Commission was again asked to rule on a similar issue. In A.O. 2001-46, the Commission found that an active member of the Bristol Police Department could assist a private investigator in reviewing a criminal case under the jurisdiction of the Massachusetts’s District Attorneys Office provided that (1) he had no involvement with matters subject to the Bristol Police Department’s official jurisdiction; (2) he did not disclose any confidential information he obtained in the course of his employment with the Bristol Police Department; and (3) he performed such work on his own time and without the use of public resources. The rationale given was that because he would not be acting in matters in his private capacity where he exercises authority in his public capacity, the petitioner would not be in substantial conflict with his duties in the public interest, nor would his judgment be impaired as to his public duties. The Commission concluded that he could accept such private employment, provided that all work is performed on his own time and without the use of public resources. Further, the petitioner was cautioned that he could not disclose any confidential information he obtained in the course of his employment with the Bristol Police Department, including information from law enforcement databases. Finally, he was reminded that he may not in any way use his public position to solicit business for any private employment. Similarly, in A.O. 2000-93, the Commission opined that investigative employees of the Department of Labor and Training, state employee positions, could accept or maintain private employment in the professional fields for which they had investigative, licensing and enforcement responsibilities provided that (1) they did not perform such work within the State of Rhode Island; (2) they performed such work on their own time and without the use of public resources, and (3) they did not use their State positions to recruit potential clients. See A.O. 2000-93. Here, the petitioner wishes to apply for a private investigator’s license from the City of East Providence. He has made express representations that he will not accept any cases or perform any work within the City of East Providence. Moreover, the petitioner represents that he would (1) perform all work on his own time; (2) not use any public resources of his full-time employer, including any information from law enforcement databases, nor would he direct others to access said databases, and (3) not use his position as a police officer to obtain clients or private work. Accordingly, based upon the representations made herein, the petitioner is neither prohibited from applying for a private investigator’s license from the City of East Providence nor is he prohibited from operating said business from his residence in East Providence. The petitioner is cautioned that this opinion does not, and cannot, address whether any municipal charter or ordinance, or departmental policy prohibits such activity. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-7(a) Related Advisory Opinions: 2001-46 2000-93 95-5 Keywords: Private employment Confidential Information