Advisory Opinion No. 2009-31 Rhode Island Ethics Commission Advisory Opinion No. 2009-31 Re: E. Patrick Luther QUESTION PRESENTED The Petitioner, Chief Plumbing Investigator for the Rhode Island Department of Labor and Training, a state employee position, who is also licensed as a master plumber and pipefitter, requests an advisory opinion regarding whether the Code of Ethics prohibits him from working as a plumber and pipefitter in the State of Rhode Island. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Chief Plumbing Investigator for the Rhode Island Department of Labor and Training, a state employee position, who is also licensed as a master plumber and pipefitter, is prohibited from working as a plumber and pipefitter in the State of Rhode Island, but is not prohibited from performing such work outside of the State of Rhode Island, provided that: 1) such work is performed on his own time and without the use of public resources, and 2) he does not use his state position to recruit potential clients. The Petitioner is the Chief Plumbing Investigator for the Department of Labor and Training (“DLT”). The Petitioner represents that as Chief Plumbing Investigator, his job is to investigate complaints against companies that use unlicensed or unregistered individuals to install plumbing in Rhode Island. The Petitioner included with his request for an advisory opinion a job description that includes a general statement of his duties and illustrative examples of work performed. This general statement describes the following duties: “To plan, supervise and review the work of subordinate investigators engaged in enforcing rules, regulations and requirements of the State Board of Plumbing Examiners; to participate in and perform the most difficult investigations; and to do related work as required.” Further illustrative examples of work performed by an individual occupying the Petitioner’s position include: serving as a liaison between the State Board of Plumbing Examiners and state local and private agencies in “matters concerning plumbing safety, investigations and codes;” supervising and participating in investigations of plumbing work reported to have been performed by licensed persons alleged to be below the standards required by federal and state safety codes; preparing regular and special reports concerning inspections and investigations with detailed findings and recommendations; assisting in the administration of written examinations given to applicants for journeyman and contractor licenses; assisting in research, preparation and revision of rules and regulations; cooperating with state and local officials in the investigation of fires and deaths reportedly caused by faulty plumbing installations. The Petitioner states that, upon being hired to his current position, he was told by his then supervisor that he would not be able to operate a plumbing and heating business in Rhode Island based on a prior advisory opinion that issued from the Ethics Commission. The Petitioner states that, nonetheless, due to economic reasons, he wants to work as a plumber and pipefitter in Rhode Island on his own time after regular working hours and on weekends. He further states that the division that he works for within the DLT would have no authority to discipline him as a master plumber and pipefitter, as he is already properly licensed. Thus, given all of the above-stated facts, the Petitioner requests an advisory opinion as to whether the Code of Ethics prohibits him from working within the State of Rhode Island while employed as the Chief Plumbing Investigator for the DLT. Under the Code of Ethics, a public official or employee 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 in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, he may not accept other employment which will impair his independence of judgment as to his official duties. See R.I. Gen. Laws § 36-14-5(b). Further, the Petitioner is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, his family members, business associates or employers. See R.I. Gen. Laws § 36-14-5(d). In his request letter, the Petitioner referenced a prior advisory opinion issued by the Ethics Commission that is precisely on point to this Petitioner’s set of facts, i.e., Advisory Opinion 2000-93. In that opinion, the Administrator of the State's Division of Professional Regulation within the DLT requested an advisory opinion as to whether investigative employees of that division could have private employment in the professional fields for which they had investigative, licensing and enforcement responsibilities. The Commission concluded that such employees could accept or maintain private employment in the professional fields for which they had investigative, licensing and enforcement responsibilities provided that: 1) they did not perform such work within the State of Rhode Island, 2) they performed such work on their own time and without the use of public resources, and 3) they did not use their state positions to recruit potential clients. See id. The rationale provided in A.O. 2000-93 for this conclusion was that: Chief Investigators and other investigative employees have the statutory and regulatory responsibility to license, investigate and enforce regarding a discreet professional discipline. For those employees to engage in private employment in that same discipline within the state would result in an inherent conflict of interest. On the one hand they would be regulating their competitors, while on the other their own office would be charged with regulating them. Therefore, the common practice that the Division has followed is consistent with the requirements of the Code of Ethics, at least as it relates to private employment within the State of Rhode Island. We believe that this analysis still adheres today. This would not, however, prohibit the Petitioner from performing such work outside of his investigatory jurisdiction, that being the State of Rhode Island. This analysis is in line with subsequently issued advisory opinions which have required public employees who take on secondary employment to work in areas outside of those over which they have jurisdictional authority. See A.O. 2006-17 (opining that an East Providence Police Lieutenant could apply for a private investigator’s license and operate said business in the City of East Providence provided that, among other things, he had no involvement with matters subject to the East Providence Police Department’s official jurisdiction and that he did not accept any cases or perform any work within the City of East Providence for as long as he is employed by the East Providence Police Department); A.O. 2001-46 (opining that a Bristol Police Officer assigned to the Detective Division may assist a private investigator in reviewing a criminal matter under the jurisdiction of the Massachusetts District Attorney’s Office, provided that he has no involvement with matters subject to the Bristol Police Department’s official jurisdiction); A.O. 2001-27 (opining that a Captain in the Cranston Fire Department may accept private employment with an architect to review plans for submission to another municipality for fire code compliance, provided that he has no involvement with plans subject to his official jurisdiction). Accordingly, it is the opinion of the Ethics Commission that the Petitioner is prohibited by the Code of Ethics from working as a plumber/pipefitter in the State of Rhode Island as long as he serves in his current position as Chief Plumbing Investigator, but is not prohibited from completing such work outside of the State of Rhode Island, provided that: 1) such work is performed on his own time and without the use of public resources, and 2) he does not use his State position to recruit potential clients. Code Citations : 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-7(a) Related Advisory Opinions : 2006-17 2001-46 2001-27 2000-93 Keywords : Private Employment