Advisory Opinion No. 2007-22 Advisory Opinion No. 2007-22 Re: Mary Ellen McQueeney-Lally QUESTION PRESENTED The petitioner, an attorney employed by the Rhode Island Department of Labor & Training, a state employee position, requests an advisory opinion as to whether she may accept part time employment as a prosecutor for the North Providence Municipal Court, given that another attorney employed by the Department of Labor & Training sits as an Associate Judge of the North Providence Municipal Court. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, an attorney employed by the Rhode Island Department of Labor & Training, a state employee position, may accept part time employment as a prosecutor for the North Providence Municipal Court, provided that all such municipal work is performed on her own time and without the use of state resources. The fact that a fellow attorney employed in the Department of Labor & Training’s legal division sits as an Associate Judge of the North Providence Municipal Court does not implicate the prohibitions contained in the Code of Ethics. The petitioner is employed as an attorney in the legal division of the Rhode Island Department of Labor & Training (DLT). She advises that she has been offered a part time position as a prosecutor for the North Providence Municipal Court. The North Providence Municipal Court operates under the auspices of the Police Department and handles matters involving certain motor vehicle offenses, parking enforcement, Town Ordinance violations, animal control violations and various zoning issues. The North Providence Municipal Court, which meets twice monthly in the evening, has two judges who rotate and one prosecutor. The petitioner informs that another attorney who also is employed in the DLT’s legal division sits as an Associate Judge of the North Providence Municipal Court. She represents that no business, familial or private employment relationship exists between herself and the other DLT attorney. She further represents that she and the other attorney are co-equal employees in the legal division, with neither exercising supervisory authority over the other. The petitioner states that her responsibilities at the DLT involve labor relation matters within the DLT, representing the DLT on various union matters and grievances. She states that DLT attorneys serve as hearing officers on matters involving workers compensation and labor standards. Under the Code of Ethics, a public employee may not accept other employment that will either impair her independence of judgment as to her official duties or employment, or that would require her to disclose confidential information acquired in the course of her official duties. See R.I. Gen. Laws § 36-14-5(b). A public employee may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). A public employee will have an interest in substantial conflict with her official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of her activity, to herself, a family member, a business associate, or any business by which she is employed or which she represents. See R.I. Gen. Laws § 36-14-7(a). The Code also provides that a public employee may not use her office or position to obtain financial gain for herself, a family member, a business associate, an employer, or any business that she represents. See R.I. Gen. Laws § 36-14-5(d). In past advisory opinions, the Commission has opined that the Code of Ethics does not create an absolute bar to simultaneous service on a municipal and state governmental entity. See A.O. 2004-30; A.O. 2004-23. Further, 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 or her private employment, (2) the public employee completed such work outside of his or her normal working hours, and (3) the public employee did not appear before his or her own agency. Sections 5(a) and (d) of the Code do not create an absolute bar to simultaneous service as a DLT employee and a municipal prosecutor. Rather, a matter by matter evaluation and determination must be made as to whether substantial conflicts of interest exist with respect to carrying out the petitioner's duties in the public interest. Here, the Commission concludes that simultaneous service in both positions would not present an inherent conflict of interest under the Code of Ethics. It is unlikely that the petitioner’s part time employment as a municipal prosecutor in the Town of North Providence would impact her responsibilities as an attorney employed by the DLT and vice versa, given the different spheres of responsibilities that fall to those respective positions. Absent some direct financial nexus between the petitioner’s two public roles, no inherent conflict of interest would preclude such simultaneous service. While there is similarly no evidence of a violation of the Code's section 5(b), which prohibits the acceptance of other employment which will either impair independence of judgment or induce disclosure of confidential information, the petitioner is cautioned to remain mindful of this provision when she serves in each of her public roles. If any particular matter pending before either public body presents such a conflict, the petitioner should seek further advice from the Commission or recuse in accordance with R.I. Gen. Laws § 36-14-6. Finally, the petitioner informs that that an Associate Judge of the North Providence Municipal Court is her co-equal employee within the DLT’s legal division. Absent the existence of a private business or familial relationship between the two attorneys, the petitioner’s appearance before her DLT co-worker sitting as an Associate Judge of the North Providence Municipal Court does not trigger the prohibitions contained in the Code of Ethics. The petitioner is advised that this opinion solely addresses the application of the Code of Ethics and whether the Code prohibits her from simultaneously holding these public positions. This opinion does not, and cannot, address whether any municipal charter or ordinance, or any other statutes, policies or rules, such as the Rules of Professional Conduct, prohibit such simultaneous service. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-6 36-14-7(a) Related Advisory Opinions: 2005-46 2005-45 2005-38 2004-30 2004-23 2004-10 2003-73 2003-37 Keywords: Dual Public Roles