Advisory Opinion No. 2008-31 Rhode Island Ethics Commission Advisory Opinion No. 2008-31 Re: Amy Grzybowski QUESTION PRESENTED The petitioner, a Homeland Security Grant Manager for the Rhode Island Emergency Management Agency, a state employee position, requests an advisory opinion as to whether she may act as a private consultant to assist public and private agencies in the preparation of grant applications. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Homeland Security Grant Manager for the Rhode Island Emergency Management Agency, a state employee position, may act as a private consultant to assist public and private agencies in the preparation of grant applications without violating the Code of Ethics. The petitioner advises that she is employed as a Homeland Security Grant Manager (“grant manager”) for the Rhode Island Emergency Management Agency (“EMA"). In that capacity, she states that she is responsible for the writing, managing, and administration of any Homeland Security grants that are received by the State of Rhode Island. The petitioner further advises that, when necessary, she also assists state and municipal agencies with Homeland Security grant management. The petitioner informs that grants can be competitive or non-competitive in nature. She states that a competitive grant is one where an application package or project idea can determine the amount of grant money an entity receives. The petitioner informs that a non-competitive grant is a grant whereby the grantor informs an entity that it will be receiving a certain amount of money and that it must craft the application around the monetary amount to be given. The petitioner states that in this situation, the grantee is not competing against any other entity and only applies for this type of grant in conformance with the guidelines. The petitioner states that she wishes to become a private consultant, outside of her state employment, to assist both private and public agencies in the preparation of grant applications. The petitioner states that in this private capacity she would be assisting with federal and/or state grant applications. Specifically, the petitioner represents that she would only work on non-competitive Department of Homeland Security Grants; competitive Department of Homeland Security Grants that Rhode Island is not eligible to receive such as the Trucking Security Grant Program or the Intercity Bus Grant Program; Department of Education Grants, and any other federal, state, or private grant that would not impact her employment as a grant manager in Rhode Island or adversely impact the state in any way. The petitioner expressly represents that the grants she would be involved with as a private consultant would not be in competition with the grants that Rhode Island is eligible to receive from the Department of Homeland Security and at no time would Rhode Island’s ability to receive grant funding be compromised by her private consulting activities. Moreover, the petitioner expressly represents that: (1) she would not divulge to her private clients any confidential information obtained as part of her employment with EMA, (2) she would work on her own time without the use of any state equipment or resources, (3) all consulting work would be accomplished for out-of-state entities, (4) she would not represent herself or any of her business associates before the EMA, and (5) her private employment activities would not conflict with her current duties as grant manager for EMA. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest 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). An official will have an interest in substantial conflict with her official duties if it is likely that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of her activity, to the official, a family member, or a business associate. See R.I. Gen. Laws § 36-14-7(a). R.I. Gen. Laws § 36-14-5(b) prohibits a public official from accepting other employment that will either impair her independence of judgment as to her official duties or employment or require her to disclose confidential information acquired by her in the course of her official duties. A public official may not use her public position to obtain financial gain, other than that provided by law, for herself, her family or business associates. See R.I. Gen. Laws § 36-14-5(d). The Commission has previously issued an advisory opinion to this petitioner on a nearly identical question presented. In A.O. 2008-10, this petitioner asked whether she could accept part-time employment with Hillard Heintze, LLC, a private security and public safety consulting group located in Chicago, as a grant consultant to assist public and private agencies in the preparation of grant applications. Other than the fact that the prior question involved consulting solely through Hillard Heintze, LLC, as opposed to the instant question framed in terms of self-employment, the representations made by the petitioner then and now are identical. In the prior advisory opinion, the Commission opined that the petitioner's private consulting would not violate the Code of Ethics, given her representations that her private employer and clients would not be in competition with grants that Rhode Island is eligible for from the Department of Homeland Security, that she would not divulge any confidential information to her private clients, that she would work on her own time and without the use of any public equipment or resources, that all of her consulting work would be accomplished for out-of-state entities, that she would not represent herself or any of her business associates before the EMA, and that her private employment activities would not conflict with her current duties as grant manager for EMA. In issuing A.O. 2008-10, the Commission also relied on previous advisory opinions in which approval was given for public employees to accept outside employment, provided that: (1) the public employee’s official duties did not directly relate to her private employment, (2) the public employee completed such work outside of her normal working hours, and (3) the public employee did not appear before her own agency. See A.O. 2007-11 (opining that the Director of the Rhode Island Municipal Police Training Academy was not prohibited by the Code of Ethics from continuing to administer grants awarded annually by state and federal agencies to provide highway safety training and traffic management to Rhode Island law enforcement personnel based upon the petitioner’s representations that the grants were unrelated to his official duties and that all grant-related work would be performed from his home office without the use of any state equipment or resources); A.O. 2005-52 (opining that a part-time Town Planner for the Town of Exeter was not prohibited by the Code of Ethics from accepting part-time work as a consultant on two projects for the Exeter Town Council and Planning Board); A.O. 2005-15 (opining that the Principal Civil Engineer for the Department of Environmental Management (“DEM”) was not prohibited by the Code of Ethics from accepting part-time employment with a private firm that submits work to the DEM); A.O. 2004-24 (opining that a member of the City of Cranston Fire Department and Assistant Deputy State Fire Marshal was not prohibited by the Code of Ethics from providing consulting services relating to fire safety and code compliance outside of Cranston). See also A.O. 2007-38 (opining that the Senior Appraiser for the Department of Administration, Office of Municipal Affairs, was not prohibited by the Code of Ethics from accepting private employment in the form of a part-time job as a data collector for a property reevaluation company); A.O. 2007-34 (opining that a Supervising Planner for the Rhode Island Water Resources Board was not prohibited by the Code of Ethics from engaging in the sale of recycled food barrels and retrofitted rain barrels); A.O. 2007-25 (opining that a member of the Rhode Island House of Representatives was not prohibited by the Code of Ethics from accepting consulting work with a non-profit organization that has previously received, and could continue to receive, funding through a community service grant in the state budget). Here, just as in her prior request for an advisory opinion, the petitioner represents that she would only work on non-competitive Department of Homeland Security Grants; competitive Department of Homeland Security Grants that Rhode Island is not eligible for such as the Trucking Security Grant Program or the Intercity Bus Grant Program; Department of Education Grants, and any other federal, state, or private grant that would not impact her employment as a grant manager in Rhode Island or adversely impact the state in any way. She further represents that the grants she would be involved with would not be in competition with the grants that Rhode Island is eligible for from the Department of Homeland Security and at no time would Rhode Island’s ability to receive grant funding be compromised by her private consulting activities. Moreover, the petitioner represents that she would not divulge any confidential information obtained as part of her employment with EMA, she would work on her own time without the use of any state equipment or resources, all consulting work would be accomplished for out-of-state entities, she would not represent herself or any of her business associates before the EMA, and her private consulting activities would not conflict with her current duties as grant manager for EMA. Accordingly, based upon the petitioner’s express representations stated herein, the Commission opines that the petitioner may act as a private consultant to assist public and private agencies in the preparation of grant applications without violating the Code of Ethics. Code Citations : 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-7(a) Related Advisory Opinions : 2008-10 2007-38 2007-34 2007-25 2007-11 Related Advisory Opinions Cont. : 2005-52 2005-15 2004-24 Keywords : Private Employment