Advisory Opinion No. 2006-53 Advisory Opinion No. 2006-53 Re: Richard A. Caldarone QUESTION PRESENTED: The petitioner, a Facilities and Grounds Coordinator employed by the Rhode Island Department of Administration, Division of Central Services, a state employee position, requests an advisory opinion as to whether he may be hired as a consultant to a software company who provides software and hardware services to the Division of Central Services. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Facilities and Grounds Coordinator employed by the Rhode Island Department of Administration, Division of Central Services, a state employee position, may be hired as a consultant to the software company who provides software and hardware services to the Division of Central Services provided that (1) his consulting work does not relate to his official duties, (2) he would complete the work on his own time without the use of public resources, and (3) the nature of his work would not require him to appear before his own agency. The petitioner informs that he is employed by the State of Rhode Island in the Division of Central Services as a Facilities and Grounds Coordinator. He advises that he operates and maintains the automated computer fuel distribution system which is manufactured by E.J. Ward Company (“Ward”) in San Antonio, Texas. The petitioner represents that Ward has provided computer services to the State since 1979 and that he is not involved in any aspect of choosing the computer products from Ward. The petitioner advises that Ward has asked him to provide consulting services for its products in the New England region. The petitioner informs that the services he would be providing would include: training customers on new installations, advice regarding on-site repairs, and offering advice on the day-to-day operations of the system. The petitioner represents that he would provide such service on his own time, without the use of public resources and that his consulting work would not require him to appear before his own agency. Given these representations, the petitioner asks whether such employment would violate the Code of Ethics. Under the Code of Ethics, a public official or employee 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 or employee 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 or employee 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 or employee may not use his office or position 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 or employee 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. 2005-27 (a Senior Health Services Policy and Systems Specialist employed by the RIDOH, a state employee position, may continue his part-time employment with a non-profit organization although the organization is partially funded by the RIDOH. Here, the petitioner represents that his consulting work would not relate to his official duties, that he would complete the work on his own time without the use of public resources, and that the nature of his work would not require him to appear before his own agency. Accordingly, the Commission opines that, provided that the petitioner adheres to his representations, the petitioner’s consulting 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 any other statutes, regulations, 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 : 2005-27 2005-15 2003-67 2003-51 2003-28 Keywords : Private employment