Advisory Opinion No. 2007-34 Advisory Opinion No. 2007-34 Re: Beverly O’Keefe QUESTION PRESENTED The petitioner, a Supervising Planner for the Rhode Island Water Resources Board, a state employee position, requests an advisory opinion regarding whether she may, on her own time and in her private capacity, engage in the sale of recycled food barrels and retrofitted rain barrels. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Supervising Planner for the Rhode Island Water Resources Board, a state employee position, may, on her own time and in her private capacity, engage in the sale of recycled food barrels and retrofitted rain barrels. The petitioner is a Supervising Planner for the Rhode Island Water Resources Board, a state agency which supports the proper development, protection, conservation and use of the state’s water resources. She represents that her responsibilities include coordination of the Water Supply Management Plan program, the Drought Management Program, and the review of state agency plans, rules and regulations. She also works with Rhode Island’s largest water suppliers in the preparation of water supply system management plans. Finally, the petitioner manages the Information Technology/Geographical Information System website and performs program evaluation within her agency. In her private capacity, the petitioner states that she is a certified Master Gardener specializing in workshops and seminars on rainwater harvesting and rain gardens. In conjunction therewith, the petitioner states that she sells, for a profit, recycled food barrels and retrofitted rain barrels to other Master Gardeners and others. She represents that this private work is all conducted outside of her public work hours, and without the use of any public resources. She further notes that she does not solicit sales from any persons or entities that have an interest in her public decision-making, either inside or outside of the Water Resources Board. Given all of these representations, the petitioner asks whether the Code of Ethics prohibits or limits her private enterprise. Under the Code of Ethics, the petitioner may not engage in any private business or professional activity that is in substantial conflict with the proper discharge of her duties and employment as a public official. See R.I. Gen. Laws § 36-14-5(a). “Substantial conflict” is defined as a “direct monetary gain” or a “direct monetary loss” that accrues, by virtue of the public official’s activity, to herself, a family member, a business associate, an employer, or any business that the public official represents. See R.I. Gen. Laws § 36-14-7(a). The Code provides that the petitioner shall not accept other employment that will either impair her independence of judgment as to her official duties or induce her to disclose confidential information acquired by her in the course of her official duties. See R.I. Gen. Laws § 36-14-5(b). Additionally, the Code provides that a public official or employee may not use her office to obtain financial gain other than as provided by law. See R.I. Gen. Laws § 36-14-5(d). In past advisory opinions, the Commission has allowed public officials to accept outside employment provided that (a) the official’s duties for their agency do not directly relate to their private employment; (b) he or she completes the work before or after normal working hours; and (c) the official does not appear before their own agency. See, e.g., A.O. 2001-11 (opining that an industrial hygienist employed by the Department of Health may be simultaneously employed as a private consultant in the areas of asbestos, lead paint, occupational safety and indoor air quality provided that she not appear in her private capacity before her current division within DOH); A.O. 98-135 (opining that a manager of the Scituate Reservoir employed by the Providence Forest Management Program could be simultaneously employed as a private consultant to landowners provided that such landowners do not own property within the Scituate Reservoir watershed). In the instant matter, the petitioner represents that she will not solicit any persons or entities who are interested in her public decision-making, whether such persons are within or without her agency. Furthermore, the petitioner represents that she will only engage in these private activities outside of her work hours and without the use of any equipment or resources of the Water Resources Board. Based upon the petitioner’s representations, the petitioner’s private sales activities do not appear to be in substantial conflict with her public duties as a public employee, nor does her private work appear to jeopardize her independence of judgment in her public role. For these reasons, it is the opinion of the Rhode Island Ethics Commission that the petitioner may, on her own time and in her private capacity, continue to engage in the sale of recycled food barrels and retrofitted rain barrels. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-7(a) Related Advisory Opinions: 2003-43 2003-21 2001-11 2000-76 98-137 98-135 97-50 Keywords: Financial Interest Private Employment