Advisory Opinion No. 95-76

Re: Lionel Fernandez

A. QUESTION PRESENTED

Whether Lionel Fernandez, an employee of the Rhode Island Department of Substance Abuse (Department) who is responsible for monitoring a federal grant funded by the Center for Substance Abuse Prevention (CSAP), may petition the Department for a license to open an out-patient substance abuse facility for linguistic minorities.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit Mr. Fernandez, an employee of the Rhode Island Department of Substance Abuse, from petitioning the Department for a license to open an out-patient substance abuse facility. In rendering this advisory opinion, the Commission has relied on the representations of the petitioner and the Department's Director that Mr. Fernandez, as a Development Specialist, is neither involved with the Department's license review procedures nor privileged to any confidential information which would benefit the proposed facility.

C. DISCUSSION

1. Facts

Mr. Fernandez is employed by the Department of Substance Abuse as a Senior Planning & Program Development Specialist, a position which requires him to coordinate a federally funded grant from CSAP known as the Hispanic Organized in Prevention and Education. At the present time, since CSAP funds 100% of his salary, Mr. Fernandez devotes all of his time at the Department towards managing the grant.

As the coordinator of CSAP's grant, Fernandez works closely with a number of Hispanic Agencies which implement the activities provided by the grant: Progreso Latino, SER Jobs for Progress, and Proyecto Esperanza. The target population of the grant is Hispanic youths in seventh and eighth grade at junior high schools in Providence.

Recently, in his private capacity, Mr. Fernandez formed a corporation with another individual to establish a for profit out-patient substance abuse facility to counsel linguistic minorities in Spanish and English. To create such a facility, Mr. Fernandez plans to submit to the Department, on behalf of the corporation, an application for a license.(1) According to the petitioner, the establishment of the out-patient facility will not require Mr. Fernandez to disclose confidential information acquired by him in his capacity as the coordinator of CSAP's grant.

Concerning the Department's procedures for reviewing license applications, upon submission, a license application is forwarded to the Director of the Department's Office. After an initial screening, the Director forwards the license request to the Department's Division of Quality Assurance for a recommendation concerning whether to issue the license. The present Director of the Department of Substance Abuse, Peter Dennehy, advises that Mr. Fernandez is not in any way involved in the licensing process.

2. Analysis

At issue in this advisory request is whether an employee of the Department of Substance Abuse, who coordinates and manages a federal grant from CSAP, may petition that Department for a license to establish and maintain an out-patient substance abuse facility. Under the Code of Ethics, Mr. Fernandez may not engage in any business or professional activity 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). Mr. Fernandez is also prohibited from using his position or confidential information received though his position to obtain financial gain for himself or for any business by which he is employed. See R.I. Gen. Laws § 36-14-5(d). Under the provisions of R.I. Gen. Laws § 36-14-5(e), Mr. Fernandez may also not represent himself before any state agency by which he is employed.

After considering Mr. Fernandez's position at the Department of Substance Abuse, his plans to open an out-patient substance abuse facility, and the Department's procedures for issuing licenses, we conclude that the relevant provisions of the Code of Ethics do not prohibit him from petitioning the Department to establish the proposed out-patient facility. This conclusion is based on the petitioner's and the Director of the Department's representations that Mr. Fernandez (1) will not participate in the decision-making process concerning whether to issue the license; (2) will submit the license application in the corporation's name; and (3) will neither use his position with the Department nor confidential information received though his position to benefit his business venture.

In reaching our conclusion, we are also guided by past advisory opinions which have permitted a municipal official to petition a municipal agency upon which he or she sits for a license provided that the official was neither involved in the decision-making process nor represented at the hearings/deliberations. See A.0. 89-103 (concluding that the Code of Ethics did not prohibit a member of the Newport City Council from simultaneously serving on several non-profit organizations which appeared before the City Council to apply for entertainment or liquor licenses provided that the councilor continued to recuse himself from related matters); A.O. 79-92 (determining that a Town Councilor for North Kingstown did not violate the Code by filing an application for the transfer of a liquor license with the Town Council, which had jurisdiction to hear such a matter, provided that he (1) did not influence the Council; (2) did not participate in the deliberations on his application; or (3) was not present when the Council or any subcommittee considered his application.

Although concluding that the Code of Ethics does not prohibit him from petitioning the Department to establish an out-patient facility, Mr. Fernandez is nevertheless cautioned that this advisory decision merely permits him to seek such a license and should in no way be interpreted to provide him with an endorsement to establish the proposed out-patient facility. The Commission is concerned that, in his capacity as Program Development Specialist, Mr. Fernandez may be privileged to certain information concerning the group for which he plans to provide out-patient services for profit, linguist minorities, which may give rise to ethical violations in the future. Mr. Fernandez, therefore, is strongly encouraged to seek another advisory opinion to address the other potential ethical problems created by the establishment of his proposed out-patient facility.

Footnotes

(1) The corporation must also obtain a Certificate of Need from the Rhode Island Department of Health.

Keywords

Business Interest

Business Associate

Licensing