Advisory Opinion No. 95-80

Re: Ian Knowles

A. QUESTION PRESENTED

Whether a Case Manager/Interviewer with the TASC Program at the Department of Substance Abuse may be simultaneously employed by a community-based non-profit substance abuse counseling agency on a fee-for-service basis.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that a Case Manager/Interviewer with the TASC Program at the Department of Substance Abuse may be simultaneously employed by a community-based non-profit substance abuse counseling agency, the Pawtucket Addictions Counseling Service (PACS), on a fee-for-service basis. The Commission bases its recommendations on the following representations made by both the petitioner and his supervisor at the Department of Substance Abuse: (a) that Mr. Knowles, in his capacity as a PACS employee, does not provide counseling to TASC referred clients; (b) that in his public capacity as a case manager with the Department of Substance Abuse, he does not monitor clients at the PACS facility; (c) that he has not ever intervened in his capacity as a TASC staff member on behalf of PACS, PACS clients, or PACS employees; and, (d) that he does not fill a supervisory or administrative role.

However, if any matters should arise whereby the petitioner's duality of status impairs his independence of judgement as to his official duties, or results in the disclosure of confidential information, he should: (a) notify the Department of Substance Abuse, in writing, of the nature of his interest in the matter, and (b) refrain from participating in any such matter.

C. DISCUSSION

1. Facts

Ian Knowles, an employee of the Department of Substance Abuse, has been employed on a fee-for-service basis for the Pawtucket Addictions Counseling Services (PACS) since January 1989. He requests an advisory opinion as to whether this duality of status is permitted under the Code of Ethics. Mr Knowles advises that he has been employed as a Case Manager/Interviewer in the TASC Program at the Department of Substance Abuse since 1988. The TASC program is responsible for assessing, referring, and monitoring persons who are required by the criminal justice system to avail themselves of substance abuse counseling. Said program refers persons to agencies, licensed and non-licensed, throughout the State. The petitioner advises that his responsibilities include meeting with the clients and referring them to appropriate treatment facilities based on geographical location, medical coverage, and primary substance abuse. In addition, petitioner and other case managers are required to monitor TASC clients being treated at substance abuse counseling agencies. The petitioner's supervisor, the TASC Program Coordinator, is responsible for assigning case managers to specific agencies for said monitoring.

The petitioner advises that in 1988 he decided to become an alcohol counselor and receive Chemical Dependency Professional (CDP) certification. The certification requires both working and receiving clinical supervision in a licensed state agency. The petitioner advises that he desired to receive the CDP certification both as a personal goal and due to the fact that the TASC Program is statutorily required to determine if referred individuals require treatment. In January 1989, petitioner began working at Pawtucket Addictions Counselling Services (PACS), a community-based non-profit substance abuse counseling agency, on a fee-for-service basis. Petitioner advises that PACS, like most community-based substance abuse agencies, receives state and federal grants through the Department of Substance Abuse. In exchange for such grants, the substance abuse agencies contract to deliver services to the state agency. The petitioner's wife was employed at PACS at the time and is a friend of that agency's director.

Before assuming his position at PACS, petitioner states that he met informally with the then Executive Director of the Rhode Island Ethics Commission, Mark Eckstein, in order to receive guidance concerning his prospective employment. In an informal meeting with Mr. Eckstein, the petitioner was advised that he may accept employment from PACS without violating the Code of Ethics provided he did not counsel TASC clients in his capacity as a PACS employee, and he did not monitor clients being treated at PACS in his official capacity as a TASC case manager. Mr. Knowles also apprised his immediate supervisor, the TASC Program Coordinator, of his interest in employment at PACS, and she did not find his proposed employment problematic. He also discussed the propriety of his proposed employment with two senior members in the then Division of Substance Abuse, and they also expressed the belief that his outside employment at PACS would not be inappropriate.

Mr. Knowles advises that he remains employed at PACS on a fee-for-service counselor for 3-4 hours per week. His primary responsibilities involve facilitating one or two groups for men who have been court mandated to substance abuse counseling, as well as working with self-referred clients in individual sessions. He advises that he has never counseled TASC-referred clients in his capacity as a PACS employee, nor has he ever been assigned to monitor clients being treated at PACS in his capacity as a case manager with the TASC Program at the Department of Substance Abuse. Attached to his letter requesting an advisory opinion request, the petitioner includes letters from his immediate supervisors at both the TASC Program at the Department of Substance Abuse and PACS indicating the precautions taken by the petitioner to avoid any conflicts of interest that might arise given his duality of status.

Petitioner advises that this request for an advisory opinion was prompted by comments made to the PACS Executive Director last week by a Department of Substance Abuse Contract Compliance monitor indicating that his duality of status constituted a conflict of interest. The Commissioners should note that Mr. Knowles has been acting in accordance with informal advice given to him by a former Ethics Commission Executive Director. The present formal request for an advisory opinion represents an opportunity for clarification.

2. Analysis

This advisory opinion concerns the issue of whether a public employee may hold outside employment comparable to his official duties. The Code of Ethics prohibits a public official from having employment which would be in substantial conflict with the proper discharge of his or her duties or employment in the public interest (R.I. Gen. Laws § 36-14-5(a)); from accepting other employment which will either impair his or her independence as to official duties or employment or require or induce him or her to disclose confidential information obtained by virtue of holding an official position (R.I. Gen. Laws § 36-14-5(b)); from using a public position or the confidential information received through holding such position to obtain financial gain (R.I. Gen. Laws § 36-14-5(d)); or from deriving a direct monetary gain by reason of his or her official activity (R.I. Gen. Laws § 36-14-7(a)).

This Commission has issued several advisory opinions concerning the issue of potential conflicts of interest triggered by outside employment, in some instances basing its holdings on the existence of a connection between the private employment and the petitioner's official responsibilities. In 1994, for example, the Commission ruled that the Code of Ethics would allow city and town clerks, who carry out ministerial functions involving issuing and filing marriage licenses in their official capacities, to perform marriages for a fee outside of normal working hours in light of the fact that performing marriages was not directly comparable to the official responsibilities of city and town clerks. In rendering that opinion, the Commission cautioned city and town clerks to be "constantly vigilant that they do not in any way use information obtained in the course of their government employment which will result in direct benefit to themselves." See Advisory Opinion No. 94-16.

This Commission also allowed the Director of Parks and Recreation for the City of Cranston to simultaneously serve as an investor or part-time employee, as well as a board member, of a company newly formed to manage athletic events, organize sport tours, and conduct fundraisers for non-profit agencies. In that matter, the Commission noted that "[a]lthough duties for both positions involve sporting events and the use of athletic facilities, [the petitioner]...has represented that there is no direct relation" between his public employment and private employment. See Advisory Opinion No. 94-04. In 1993, the Commission permitted an employee of the City of Cranston Parks and Recreation Department to accept part-time employment at a recently privatized rink facility, basing its opinion on the lack of any "significant interest, financial or otherwise, direct or indirect, in [the]...proposed employment opportunity which would be in substantial conflict with the proper discharge of [the petitioner's]...duties in the public interest..." See Advisory Opinion No. 93-89. The Commission also ruled that the Woonsocket Public Safety Director would not violate the Code of Ethics were he to be simultaneously employed by a credit union, which has also served as the Woonsocket municipal employees credit union for the past twenty years, and an affiliated travel service. The Commission based its finding on the fact that petitioner's private employment responsibilities would not conflict with his official duties. See Advisory Opinion No. 90-16.

Prior Commission holdings concerning the propriety of a public employee accepting outside private employment have also involved questions as to whether the public employee's agency extended contracts to or funded his or her private employer, as well as whether said public employee held a discretionary position within the state agency. In 1992, for example, the Commission ruled that an employee of the Department of Administration in charge of energy management for State owned and leased facilities may not simultaneously provide energy consulting services on a part-time basis to consulting firms presently contracting with or pursuing contracts with the State as such a duality of status "may represent acting as an agent for an entity other than the State of Rhode Island" as prohibited pursuant to Code Regulation 36-14-5008. See Advisory Opinion 92-12.

Also in 1992, however, the Commission allowed the principal program analyst for the Rhode Island Department of Environmental Management, Environmental Coordination Division--responsible for developing and implementing litter control, beautification, and special projects programs, as well as serving as project coordinator on programs and developing state-wide public relations, educational, and training programs--to accept private employment as a consultant for a public relations, marketing, and advertising firm. The Commission based its decision on the fact that said firm no longer provided services to the Department of Environmental Management. The petitioner was cautioned that should her private employer contract with her state agency for services which would involve the petitioner in a supervisory capacity, she should approach the Ethics Commission for further guidance. See Advisory Opinion No. 92-2.

The facts presented in Mr. Knowles' advisory opinion request reflect various facts that have previously led this Commission to rule against allowing outside employment among public employees. First, his outside employment as a substance abuse counselor is comparable to his responsibilities in public employment as a case manager/interviewer for the Department of Substance Abuse. Second, the state agency by which he is employed provides funding in the form of grants to his private employer in exchange for service delivery. Third, the petitioner's public employment responsibilities include referring clients to appropriate treatment facilities, as well as monitoring TASC clients at community-based facilities based on assignments from the TASC Program Coordinator.

However, the petitioner and his supervisors at both the Department of Substance Abuse and his private employer, PACS, have represented that various precautions have been taken since the petitioner assumed his position at PACS in order to avoid conflicts of interest. The TASC Program Coordinator advises that Mr. Knowles, in his capacity as a PACS employee, does not provide counseling to TASC referred clients; in his public capacity as a case manager with the Department of Substance Abuse, he does not monitor clients at the PACS facility; he does not intervene in his capacity as a TASC staff member on behalf of PACS, PACS clients, or PACS employees; and, he does not fill a supervisory or administrative role. These measures effectively insulate Mr. Knowles from any conflicts of interest between his public duties and his private employment under the relevant provisions of the Code of Ethics. See R.I. Gen. Laws § 36-14-5(a), (b), and (d).

Therefore, it is the opinion of the Rhode Island Ethics Commission that he may be simultaneously employed by the Department of Substance Abuse as a Case Manager\Interviewer and by PACS as a substance abuse counselor. However, if any circumstances should arise whereby this duality of status impairs his independence of judgement as to his official duties, or results in the disclosure of confidential information, he should: (a) notify the Department of Substance Abuse, in writing, of the nature of his interest in any matter, and (b) recuse from participating in any such matter. Notice of any recusal must be filed with the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6.

Keywords

Private Employment

Referrals

Grants

Contracts