Advisory Opinion No. 2010-39 Rhode Island Ethics Commission Advisory Opinion No. 2010-39 Re: Les Rolston QUESTION PRESENTED The Petitioner, a building inspector for the City of Warwick, a municipal employee position, requests an advisory opinion as to whether the Code of Ethics prohibits him from working as a part-time consultant for Stormtite Home Improvement, a Warwick based business. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a building inspector for the City of Warwick, a municipal employee position, is not prohibited by the Code of Ethics from working as a part-time consultant for Stormtite Home Improvement, provided that he does not inspect his own work. The Petitioner has been a building inspector for the City of Warwick for over eleven years. He represents that other than himself, there are five additional building inspectors who work for the City of Warwick, as well as his immediate superior, the Warwick Building Official. He states that building inspectors in Warwick regularly fill in for one another. The Petitioner states that he has been offered a part-time consulting position working for Stormtite Home Improvement (“Stormtite”), a Warwick-based business. He states that in this part-time position his duties would include sales, public relations, and plan review, but that he would not be doing any actual building or installation. In a telephone conversation with Staff subsequent to the receipt of his request for an advisory opinion, the Petitioner stated that he would not be accepting any work with Stormtite located within the City of Warwick. The Petitioner also represents that he has spoken with the Warwick Building Official, his immediate superior, who has agreed to allow the Petitioner to remove himself from any inspections in which Stormtite has done work, and to allow one of the other building inspectors or the Building Official to conduct the inspection. He represents that all of the other inspectors who might replace him if he has to remove himself from an inspection are non-subordinates peers. Given this set of facts, the Petitioner requests an advisory opinion regarding whether the Code of Ethics prohibits him from accepting part-time work as a consultant for Stormtite. 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 or 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). Also, an official may not participate in a matter concerning or presented by a business associate, and must recuse from voting or otherwise participating in his agency's consideration of such matters. See R.I. Gen. Laws § 36-14-5(f). 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). In the past, the Ethics Commission has consistently opined that public officials and employees are not inherently prohibited from holding employment that is secondary to their primary public employment or positions. See, e.g., A.O. 2000-93 (opining that investigative employees of the Department of Labor and Training could accept and 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). In considering whether a person subject to the Code is prohibited from taking on certain secondary employment, the Commission considers a number of factors. See generally GCA 2009-4 (opining that a public official or employee is not inherently prohibited from holding secondary employment, but that the Commission will examine a number of factors, including, but not limited to: the nexus between the official’s public duties and his or her private employment; whether the official or employee completes such work outside of his or her normal working hours and without the use of public resources; that the official or employee does not appear before his or her own agency; that such work be conducted outside of the areas over which the official has decision-making jurisdiction; and that the official or employee does not use his or her position to solicit business or customers). In past advisory opinions, the Commission has opined that a public official was not prohibited from performing services in his own town provided that the public official does not inspect his own work. See A.O. 2008-12 (opining that the Building Official for the Town of Little Compton may simultaneously work as a finish carpenter in the Town of Little Compton provided that he does not inspect his own work); A.O. 2003-55 (opining that the Alternate Building Official for the Town of Coventry may do work in Coventry that doesn’t require a permit or inspection, such as cabinetry work, painting, and tile work, provided that he would not be inspecting projects for which he provided services); A.O. 99-39 (opining that the Alternate Building Official for the Town of East Greenwich may provide architectural design services for private clients within East Greenwich, provided that he recuse from participation in any review or inspection of projects in which he is involved and that his private employment does not require him to appear before the Building Official). In this Petitioner’s set of facts, the likelihood of conflict is even more remote, given that the Petitioner has affirmatively represented that he would not work on projects for Stormtite that are located within the City of Warwick, and thus would not face the possibility of inspecting work to which he has provided services. Given that representation, we opine that the Petitioner would not be participating in matters where he had an interest in substantial conflict. In the facts as presented by the Petitioner, not only will he not personally be performing consulting services for Stormtite for jobs located in the City of Warwick, he is also able to remove himself from any inspections in Warwick in which Stormtite has provided services, and such inspections may be performed by a different, non-subordinate inspector. Accordingly, we opine that the Petitioner is not prohibited from performing part-time consulting for Stormtite as described herein while simultaneously serving as a building inspector for the City of Warwick, provided that such consulting work is not done during his regular working hours as building inspector, and he may not use public resources, nor use his position with the City to solicit customers. Finally, the Petitioner is advised that this opinion solely addresses the application of the Code of Ethics to the facts as represented by the Petitioner. This opinion does not address the application of any other statutes, rulings, policies, charters, or ordinances to such activity. Code Citations: 36-14-2(3) 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-5(f) 36-14-7(a) Related Advisory Opinions: G.C.A. 2009-4 A.O. 2000-93 A.O. 2008-12 A.O. 2003-55 A.O. 99-39 Keywords: Secondary employment