Advisory Opinion No. 2009-33 Rhode Island Ethics Commission Advisory Opinion No. 2009-33 Re: Robert J. Reilly, Esq. QUESTION PRESENTED The Petitioner, a firefighter employed by the City of Providence Fire Department, a municipal employee position, who serves as a Fire Investigator in the Arson Unit, requests an advisory opinion as to whether, in his private capacity as a licensed attorney, he may represent clients before the Rhode Island Fire Safety Code Board of Appeal and Review, as well as the offices of municipal fire marshals outside of the City of Providence. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a firefighter employed by the City of Providence Fire Department, a municipal employee position, who serves as a Fire Investigator in the Arson Unit may, in his private capacity as a licensed attorney, represent clients before the Rhode Island Fire Safety Code Board of Appeal and Review, as well as the offices of municipal fire marshals outside of the City of Providence, provided that: 1) he engages in such activity on his own time and without the use of public resources; 2) he does not disclose confidential information acquired by him in his public employment; 3) he does not represent clients before the Board of Appeal and Review on matters involving the City of Providence; and 5) he does not use his position with the Providence Fire Department to obtain private clients. The Petitioner has been employed as a firefighter by the City of Providence Fire Department since September 1987. He advises that he was recently transferred to the Department’s Arson Unit, where he serves as a Fire Investigator. Pursuant to his new position, he informs that he is required to obtain certification as an Assistant Deputy State Fire Marshal, which includes National Fire Protection Association (“NFPA”) 1031 certification.[1] He represents that he is in the final stages of completing said certification, having passed the class and required exam. In his capacity as a Fire Investigator, the Petitioner states that he reports to the Providence Fire Marshal. He further states that he is not employed by the State Fire Marshal’s Office. In his private capacity, the Petitioner informs that he is a licensed attorney. He indicates that he wishes to represent clients before the Rhode Island Fire Safety Code Board of Appeal and Review (“Board of Appeal and Review”) and the offices of municipal fire marshals outside of the City of Providence. He informed Commission Staff that the Board of Appeal and Review hears appeals from notices of violations or deficiencies issued by both the State Fire Marshal and the various municipal fire marshals. He advised Commission Staff that he would not represent clients before the Board of Appeal and Review on matters involving the City of Providence. The Petitioner further informed Commission Staff that he has declined representing a potential client before the Board of Appeal and Review regarding a citation issued by the East Greenwich Fire Marshal in order to obtain guidance from the Commission as to the propriety of his conduct under the Code of Ethics. The Petitioner requests guidance as to whether it would be a conflict of interest for him to represent clients before the Board of Appeal and Review, as well as the offices of other municipal fire marshals outside of the City of Providence, given his certification by the State Fire Marshal as an Assistant Deputy Fire Marshal. He indicates that his knowledge of the NFPA 1 and NFPA 101 puts him in a unique position of having a substantial amount of knowledge of the Fire Code and Life Safety Code with which to better represent clients who are appealing decisions or seeking variances.[2] The Code of Ethics provides that the Petitioner may not have an interest or engage in any employment or professional activity that is in substantial conflict with the proper discharge of his duties 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). Finally, pursuant to R.I. Gen. Laws § 36-14-5(e)(1) and (2), the Petitioner may not represent himself or any other “person” before any state or municipal agency of which he is a member or by which he is employed. A “person” is defined as an individual or business entity. R.I. Gen. Laws § 36-14-2(7). Subsection 36-14-5(e)(4) extends these prohibitions for a period of one year after the Petitioner has officially severed his position with said agency. In previous advisory opinions, the Commission has given its approval for municipal employees to accept private employment similar to their public duties, provided that: 1) they performed such private work outside of their official jurisdiction; 2) performed all work on their own time without the use of public resources; 3) did not use their public positions to recruit potential clients; and 4) did not disclose any confidential information they obtained in the course of their public employment. See A.O. 2006-17 (opining that a Lieutenant on the East Providence Police Department could apply for a private investigator’s license and operate said business in the City of East Providence, provided that: 1) he had no involvement with matters subject to the East Providence Police Department’s official jurisdiction; 2) he did not disclose any confidential information he obtained in the course of his employment with the Police Department; 3) he performed such work on his own time and without the use of public resources, including law enforcement databases; 4) he did not use his position as a police officer to obtain clients or private work; and 5) he did not accept any cases or perform any work within the City of East Providence for as long as he was employed by the East Providence Police Department); A.O. 2000-93 (opining that investigative employees of the Department of Labor and Training 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); and A.O. 2000-27 (opining that the Newport Tax Assessor could accept part-time employment with a local appraisal company and/or assist private parties with appeals of property valuations in other communities, provided that: 1) he has no involvement with properties located within his official jurisdiction; 2) he performed such work on his own time and without the use of public resources; and 3) he did not use his position as Tax Assessor to recruit potential clients). Similarly, in A.O. 2001-27, the Commission opined that a Captain in the Cranston Fire Department could accept private employment with an architect to review plans for submission to another municipality for fire code compliance, provided that: 1) he had no involvement with plans subject to his official jurisdiction; 2) he performed such work on his own time and without the use of public resources; and 3) he did not use his position within the Fire Department to recruit potential clients. Here, the Petitioner wishes to represent private clients before the Board of Appeal and Review and the offices of municipal fire marshals outside of the City of Providence. He has stated that he would not represent clients before the Board of Appeal and Review on matters involving the City of Providence. Based upon said representation, the Petitioner would not be acting in matters in his private capacity as an attorney where he exercises authority in his public capacity. As such, he would not be in substantial conflict with his duties in the public interest, nor should his judgment be impaired as to his public duties. Accordingly, the Commission concludes that the Petitioner may represent private clients before the Board of Appeal and Review on matters not involving the City of Providence, as well as the offices of municipal fire marshals outside of the City of Providence, provided that all private work is performed on his own time and without the use of public resources. Further, the Petitioner may not disclose any confidential information he obtained in the course of his employment with the Providence Fire Department, nor may he in any way use his public position to solicit business for any private employment. See R.I. Gen Laws § 36-14-5(d). Finally, based upon the Petitioner’s status as an employee of the Providence Fire Department and his express representation that he is not an employee of the State Fire Marshal’s Office, the Commission opines that his representation of private clients before the Board of Appeal and Review, as described above, would not implicate the revolving door prohibitions set forth in R.I. Gen. Laws § 36-14-5(e). Code Citations : 36-14-2(7) 36-14-5(a) 36-14-5(b) 36-14-5(c) 36-14-5(d) 36-14-5(e) 36-14-7(a) Related Advisory Opinions : 2007-1 2006-17 2001-46 2001-27 2000-93 Keywords : Confidential information Private employment Revolving door [1] The National Fire Protection Association (NFPA) is responsible for three hundred (300) codes and standards that are designed to minimize the risk and effects of fire by establishing criteria for building, processing, design, service, and installation in the United States, as well as other countries. The NFPA 1031, Standard for Professional Qualifications for Fire Inspector and Plan Examiner, identifies the professional levels of performance required for fire inspectors and plan examiners; specifically identifying the job performance requirements necessary to perform as a fire inspector or a plan examiner. See http:// www.nfpa.org. [2] The NFPA 1, Fire Code, provides requirements to establish a reasonable level of fire safety and property protection in new and existing buildings. The NFPA 101, Life Safety Code, establishes minimum requirements for new and existing buildings to protect building occupants from fire, smoke, and toxic fumes. See http:// www.nfpa.org.