Advisory Opinion No. 2008-50 Rhode Island Ethics Commission Advisory Opinion No. 2008-50 Re: Scott N. Marshall, DVM QUESTION PRESENTED The petitioner, the Rhode Island State Veterinarian, a state appointed position, requests an advisory opinion as to whether he is prohibited by the Code of Ethics from serving as an adjunct professor at the University of Rhode Island. RESPONSE It is the opinion of the Ethics Commission that the petitioner, the Rhode Island State Veterinarian, a state appointed position, is not prohibited from serving as an adjunct professor at the University of Rhode Island. The Petitioner is the Rhode Island State Veterinarian (“State Veterinarian”), a position in the Division of Agriculture within the Rhode Island Department of Environmental Management (“DEM”). His broad duties as State Veterinarian are to insure the health of animals in Rhode Island, to monitor the animals in the state for diseases (that threaten public health, animal health, or interstate and international trade), and to prepare the state to respond to any disaster that involves animals. He states that, in the past, the Division of Agriculture has utilized University of Rhode Island (“URI”) students as seasonal help due to staffing constraints within that department. He further states that some funds that the Division of Agriculture receives from the United States Department of Agriculture (“USDA”) are used to assist URI students in conducting research projects that will support the state in its surveillance efforts of animal diseases. The petitioner states that his direct supervisor, the Chief of the Division of Agriculture, determines whether any money is made available to URI students for these projects. Additionally, the petitioner states that URI owns livestock that is subject to regulation by the Division of Agriculture. Based on all of the above, the petitioner requests an advisory opinion regarding whether he may serve as an adjunct professor at URI, a position for which he will not receive a salary on any other remuneration, given that he currently serves as the State Veterinarian. Under the Code of Ethics, the petitioner 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 and employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). The petitioner will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(a). The Code further provides that the petitioner shall not engage in any employment that would impair his independence of judgment as to his public duties. See R.I. Gen. Laws § 36-14-5(b). He also is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d). Additionally, no business associate of any person subject to the Code of Ethics shall represent him or herself before the state agency of which the person is a member unless the agency is advised of the nature of the relationship and the official recuses himself from voting or otherwise participating in his agency's consideration of the matter at issue. See R.I. Gen. Laws § 36-14-5(f). A business is defined as “a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, trust or any other entity recognized in law through which business for profit or not for profit is conducted.” R.I. Gen. Laws § 36-14-2(2). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3). A person is defined as “an individual or a business entity.” R.I. Gen. Laws § 36-14-2(7). In this instance, the facts as represented by the petitioner do not lead the Commission to conclude that the petitioner is inherently prohibited from serving as an adjunct professor at URI. While the petitioner is employed by the Division of Agriculture as the State’s Veterinarian, and the Code would prohibit the petitioner from making decisions in that capacity that would financially impact any business associate or any business by which he is employed or represents, neither the Division of Agriculture nor URI are considered to be "businesses" or "business associates" under the Code of Ethics. See A.O. 2003-31 (opining that the Executive Director of the Rhode Island Governor's Commission on the Deaf and Hard of Hearing was not prohibited from serving on the Board of Trustees of the Rhode Island School for the Deaf as, even if his official action at one of these public bodies did financially impact the other, such action is not prohibited under the Code of Ethics because the Code of Ethics does not consider any relationship between a public official and a public body to be that of "business associates"); A.O. 2002-63 (opining that an Exeter Town Councilor was not prohibited from participating in Town Council matters regarding property owned by the State of Rhode Island, notwithstanding the fact that he was in negotiations with DEM for the sale of land owned by petitioner to the State of Rhode Island, given that the State of Rhode Island is not a business as defined under Rhode Island law, and cannot therefore be considered a “business associate” under the Code of Ethics); A.O. 2002-55 (term "business" as used in the Code of Ethics does not include municipal corporations such as the Town of Richmond). Thus the petitioner’s relationship with the University of Rhode Island, were he to accept a position as an adjunct professor, would not constitute a “business association” under the Code. Accordingly, absent any other relevant fact that would implicate provisions of the Code of Ethics, the petitioner is not prohibited from serving as an adjunct professor at URI. Furthermore, in regard to the specific questions posed by the petitioner: 1) the Division of Agriculture is not prohibited from utilizing URI students as seasonal help merely because the petitioner is an adjunct professor at URI; 2) the Division of Agriculture is not prohibited from distributing funds to URI students to assist them in relevant research projects merely because the petitioner is an adjunct professor at URI; and, 3) the petitioner need not recuse from performing the regulatory duties described herein as the State Veterinarian on behalf of the Division of Agriculture regarding URI owned livestock. The petitioner is cautioned, however, that if any matters should come before him as he is carrying out his duties in either of his public roles that may tend to impair his independence of judgment as to the performance of duties in the other role, or present any other potential conflict of interest that is not otherwise contemplated in this advisory opinion, in which it is reasonably foreseeable that there will be a financial impact upon the petitioner personally, he should either request further advice from this Commission or exercise the recusal provision found at R.I. Gen. Laws § 36-14-6. Code Citations : § 36-14-2(2) § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-5(f) § 36-14-6 § 36-14-7(a) Related Advisory Opinions : A.O. 2003-31 A.O. 2002-63 A.O. 2002-55 Keywords : Business Associate Dual Public Roles Regulatory Decisions