Advisory Opinion No. 2008-47 Rhode Island Ethics Commission Advisory Opinion No. 2008-47 Re: JoAnne M. Waite, LMFT QUESTION PRESENTED The petitioner, a member of the Sex Offender Notification Review Board, a state appointed position, requests an advisory opinion as to whether she may continue to serve on the Sex Offender Notification Review Board, while simultaneously providing counseling services to private clients. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Sex Offender Notification Review Board, a state appointed position, may continue to serve on the Sex Offender Notification Review Board, while simultaneously providing counseling services to private clients, including submitting progress reports to the Superior Court on their behalf, provided that: (1) she recuses from participating in any matter involving her clients if they should appear before her board; (2) she does not disclose any confidential information acquired by reason of her public position; (3) she does not accept as a new client any person who has appeared before her on the Review Board; and (4) she does not act as a witness or represent herself or any of her clients before the Review Board. The petitioner advises that she is a licensed Marriage and Family Therapist in Rhode Island and Massachusetts. She informs that for the last six (6) years she has been employed by Ocean State Psychotherapy, Inc. located in North Kingstown, Rhode Island. She advises that approximately 70% of her practice consists of adolescents, families, couples and young children who need specialized services. More specifically, however, her specialty for the past thirteen (13) years has been to provide treatment to adolescent and adult sexual offenders. Because of her work in the area of adolescent and adult sexual offender treatment, the petitioner advises that approximately one year ago, she was appointed to the Sex Offender Notification Review Board (“Review Board”). The Review Board determines the level of risk that a sexual offender poses to the community and assists the courts in determining if such person is a sexually violent predator. See R.I. Gen. Laws § 11-37.1-6. Pursuant to statute, a sexual offender has a right to appeal a decision of the Review Board to the Rhode Island Superior Court (“Court”). See R.I. Gen. Laws § 11-37.1-13. The petitioner informs that one member of the Review Board must be an expert “in the field of behavior and treatment of sexual offenders by reason of training and experience.” R.I. Gen. Laws § 11-37.1-6. The petitioner states that she fulfills this statutory requirement. The petitioner advises that there are times when the Review Board is required to evaluate a case involving one of her private clients. The petitioner represents that when this occurs, she recuses herself from any participation in the matter. The petitioner states, however, that on a few occasions when a client has appealed a decision by the Review Board, she has been asked, either by her client or their attorney, to write an updated status report to the Court regarding the client’s progress in treatment. The petitioner represents that because she has a professional responsibility to report her impressions to the Court regarding her client, sometimes her clinical impressions differ from the recommendation made by the Review Board. The petitioner states that the Superior Court Magistrate assigned to hear appeals from the Review Board has articulated his concern regarding the petitioner’s participation on the Review Board and her participation in the appeal process before the Court. Based upon the foregoing, the petitioner seeks guidance from the Commission as to whether she may continue to serve on the Review Board, while simultaneously providing counseling services to private clients, including submitting progress reports to the Court on their behalf, given her representation that she will recuse from participating in any matter involving her clients if they should appear before her board. The Code of Ethics provides that the petitioner shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction 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 substantial conflict of interest occurs if the petitioner has reason to believe or expect that she or any family member or business associate, or any business by which she is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. See R.I. Gen. Laws § 36-14-7(a). Additionally, the Code prohibits the petitioner from accepting other employment which will either impair her independence of judgment as to official duties or employment, or that will require or induce her to disclose confidential information acquired by her in the course of and by reason of her official duties. See R.I. Gen. Laws § 36-14-5(b). Further, pursuant to R.I. Gen. Laws § 36-14-5(e)(1) and (2), the petitioner may not represent herself or any other person before any state or municipal agency of which she is a member or by which she is employed. Finally, the petitioner may not act as an expert witness before her agency with respect to any matter the agency’s disposition of which will, or can reasonably be expected to, directly result in an economic benefit or detriment to the petitioner, a family member, business associate or any business by which she is employed or represents. See R.I. Gen. Laws § 36-14-5(e)(3). In analogous advisory opinions, the Commission has concluded that parole and probation counselors employed by the Department of Corrections (“DOC”) could accept private employment as group counselors for individuals on parole and probation, provided that they do not participate in activities in their private employment where their public clients are involved. See A.O. 2001-77 (opining that a parole and probation counselor employed by the DOC may accept private employment facilitating domestic violence group sessions at the CODAC Treatment Centers, provided that she did not participate in activities at CODAC, where individuals on her DOC probation caseload were involved). See also A.O. 97-45 (opining that a DOC Community Program Counselor may accept private employment as a group counselor for men who are on probation, parole, and electronic monitoring provided that she does not participate in activities in her private employment where her inmates are involved and that she does not accept private clients who have a reasonable likelihood of having professional contact with her in her public capacity); A.O. 96-72 (finding that a DOC Probation/Parole Officer may accept private employment as a counselor at Kent House provided that he does not participate in activities at the Kent House where his public clients are involved). Similarly, in the instant matter, the petitioner represents that she will recuse from participating in any matter when her clients appear before the Review Board. The petitioner further represents that she will not accept as a new client any person who has appeared before her on the Review Board. By such representations, the petitioner is ensuring that her official duties in the public interest and her professional responsibility to her private clients will never intersect. Accordingly, the Commission opines that the petitioner may continue to serve on the Sex Offender Notification Review Board, while simultaneously providing counseling services to private clients, including submitting progress reports to the Superior Court on their behalf, provided that: (1) she recuses from participating in any matter involving her clients if they should appear before her board; (2) she does not disclose any confidential information acquired by reason of her public position; (3) she does not accept as a new client any person who has appeared before her on the Review Board; and (4) she does not act as a witness or represent herself or any of her clients before the Review Board. Notice of recusal should be filed with the Commission in accordance with R.I. Gen. Laws § 36-14-6. Finally, the petitioner is cautioned that this opinion applies only to the Code of Ethics and does not, and cannot, address whether any other statute, regulation, policy or code of professional conduct prohibits such activity. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(e) 36-14-6 36-14-7(a) Related Advisory Opinions: 2001-77 98-129 97-93 97-45 96-72 Keywords: Private employment