Advisory Opinion No. 2006-58 Advisory Opinion No. 2006-58 Re: Bruce W. McIntyre, Esq. QUESTION PRESENTED The petitioner, Deputy Chief Legal Counsel employed by the Rhode Island Department of Health, Division of Legal Services, a state employee position, requests an advisory opinion as to whether he may be hired by the Federation of State Medical Boards to serve as the Northeast Region attorney for a physician license verification project which will be funded by a federal grant. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, Deputy Chief Legal Counsel employed by the Rhode Island Department of Health, Division of Legal Services, a state employee position, may be hired by the Federation of State Medical Boards to serve as the Northeast Region attorney for a physician license verification project which will be funded by a federal grant provided that (1) the 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 Deputy Chief Legal Counsel in the Division of Legal Services for the Department of Health. He advises that his responsibilities involve advising the regulatory boards and department personnel for physicians, chiropractors, and acupuncture. The petitioner further advises that he serves as a hearing officer for many of the 38 other licensed health care professions and facilities. He states that a majority of his time is spent investigating and prosecuting Board of Medical Licensure and Discipline instituted charges against licensed physicians. The petitioner represents that the Federation of State Medical Boards of the United States, Inc. (hereinafter “FSMB”) is attempting to obtain a federal grant from the Department of Health and Human Services to fund two regional “demonstration projects” wherein states would cooperate in a web-based single source verification process for licensed physicians. The petitioner informs that FSMB is a non-profit organization that supports member medical boards through its education programs and is partners with the National Board of Medical Examiners in the United States Medical Licensing Examination that is required of all applicants for state medical licensure. The petitioner advises that since the late 1800s, state medical boards have evaluated the education credentials of applicants for state licensure individually. He further advises that an “original source” verification process is used to verify every aspect of the applicant’s history from medical school through residency training and any subsequent post licensure activity. The petitioner informs that despite many efforts to change this system to make it more efficient, states have been unwilling to accept another state’s verification process. The petitioner states that the federal grant that FSMB is attempting to secure will replace the “original source” verification process with a web-based single source verification system, thereby eliminating the time consuming and duplicative efforts. The petitioner informs that as part of the grant application, the FSMB proposes to contract with an attorney from two separate regions, the Northeast Region (the New England states) and the Western Region (Colorado, Idaho, Iowa, Kansas, Minnesota, North Dakota, Oregon and Wyoming) to evaluate each state’s legal barriers and to keep the region informed of the project. The petitioner represents that all monies will be paid by and through the FSMB from grant funds. The petitioner further represents that he will work on the project from his home office, without the use of state resources and that this work does not relate to his official duties as Deputy Chief Legal Counsel. Given these representations, the petitioner seeks guidance from the Commission as to whether he may serve as the Northeast Region attorney for the project. 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 work as the Northeast Region attorney 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 private 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 : 2006-53 2005-27 2005-15 2003-67 2003-51 2003-28 Keywords : Private employment