Advisory Opinion No. 2010-50 Rhode Island Ethics Commission Advisory Opinion No. 2010-50 Re: Robert DiCarlo QUESTION PRESENTED The Petitioner, a police officer for the West Warwick Police Department, a municipal employee position, requests an advisory opinion concerning whether the Code of Ethics prohibits or limits his ability to open, own and operate a gold buying store in another municipality. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a police officer for the West Warwick Police Department, a municipal employee position, is not prohibited by the Code of Ethics from opening, owning or operating a gold buying store in another municipality. The Petitioner has been a West Warwick police officer since 1992 and is currently assigned to the detective division. He represents that as part of his employment he has been involved in multiple arrests and seizures involving pawn shop transactions. He notes that businesses that purchase precious metals are regulated by the Office of the Attorney General ("Attorney General") and local police departments, and the Attorney General maintains a precious metals database of all such sales in Rhode Island. He states that over the past few years he has advocated for improvements in the precious metals database and for extending the amount of time pawn shops are required to hold purchased precious metals before selling them. He states that he has also helped to draft legislation regulating the sale of precious metals. The Petitioner states that he wishes to open a store in Rhode Island, but not located in West Warwick, that purchases gold and other precious metals. He confirms that such a store would be regulated by the Attorney General and whichever local police department had jurisdiction. Given all of the above representations, the Petitioner asks whether his ownership and operation of such a store would be prohibited by the Code of Ethics. The Code of Ethics provides a public employee or official 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 a public employee or official 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). The Code also prohibits persons from using their public position or confidential information received through their position to obtain financial gain, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d). The Commission has previously applied these Code provisions to similar questions involving police officers. In Advisory Opinion 2006-17, a Lieutenant on the East Providence Police Department asked whether the Code of Ethics permitted him to apply for a private investigator’s license and operate a private investigation business in the City of East Providence. The Ethics Commission opined that the Lieutenant was not prohibited by the Code from operating such a business in East Providence, provided that: (1) he has no involvement with matters subject to the East Providence Police Department’s official jurisdiction; (2) he does not disclose any confidential information he obtained in the course of his employment with the Police Department; (3) he performs such work on his own time and without the use of public resources, including law enforcement databases; (4) he does not use his position as a police officer to obtain clients or private work; and (5) he does 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. See also A.O. 98-69 (Town of Hopkinton police officer is not prohibited from working part-time as a legal research assistant/clerk for a Rhode Island law firm, provided that he does not work on matters involving Hopkinton's police department and that he does not use public time, resources, or confidential information obtained because of his public position as a police officer); A.O. 98-112 (Detective for Cranston Police Department is not prohibited from operating a business that provides self-defense\use-of-force training to local police agencies, other than Cranston, provided that he does not in any way use his public position or public resources to support his business). Here, the Petitioner wishes to open a gold buying store in Rhode Island, which would be regulated by both the Attorney General and the applicable local police department. He expressly represents that he would not conduct any business within the town of West Warwick and, therefore, would not have any statutory reporting to, or regular interaction with, the West Warwick Police Department. Moreover, the Petitioner represents that he would: (1) perform all work relating to his private business on his own time; (2) not use any confidential or other resources of his public employer, including any information from law enforcement databases, that are not available to members of the general public; and (3) not use his position as a police officer to obtain referrals, clients or private work. Accordingly, based upon the representations made herein, the Petitioner is not prohibited by the Code of Ethics from opening, owning or operating a gold buying business. The Petitioner is cautioned that this opinion does not, and cannot, address whether any statute or regulation, municipal charter or ordinance, or departmental policy prohibits such activity. 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 2000-93 98-112 98-69 Keywords: Private employment