Advisory Opinion No. 95-93 Renumbered As Declaratory Ruling 95-2

Re: Deputy Sheriffts

A. QUESTION PRESENTED

Whether the Code of Ethics prohibits the following: (a) active state employees who are empowered to serve process in their official capacities from acting as a private agents to serve process when not working for the State; (b) retired state employees who were empowered to serve process in their official capacities from serving process as private agents; (c) state agencies from hiring private constables to serve writs for a fee when the Sheriff's Department will serve these same writs for no charge; and (d) all active state employees from acting as private agents to serve process when not working for the State.

B. SUMMARY

The Code of Ethics will not permit state employees empowered to serve process in their official capacities or employed by a state agency involved in the service of process to serve process as private agents outside of normal working hours. Such private employment, relating as it does to their official duties, currently or potentially, would violate provisions of the Ethics Code that prohibit accepting outside employment which is in substantial conflict with the proper discharge of official duties, that prohibit accepting employment which impairs independence of judgement or requires or induces a public official to disclose confidential information, and that prohibit using one's public position for financial gain. See R.I. Gen. Laws § 36-14-5(a), (b), (d) and 7(a).

However, retired state employees who served process in their official capacities may serve process immediately after leaving state service. Currently active state employees who do not serve process in their official capacities and who are not employed by an agency that is responsible for the service of process may serve process as private agents. In the case of the latter group, their official duties and the official duties of their agency do not directly relate to such private employment.

As to the petitioners' request that the Commission comment on the practice of state agencies who hire private constables to serve writs for a fee when the Sheriff's Department will serve these same writs for no charge, it is not within the Ethics Commission's jurisdiction to comment on the procurement policies of state agencies except to the extent that such policies may impact upon requirements of the Code of Ethics. In this instance, based upon the facts presented, we find that the policies do not implicate provisions of the Code.

C. DISCUSSION

1. Facts

Deputy Sheriffs Carmine Valelli, Clifford Montiero, Richard Silvestri, Lucien Rheume, and Richard Ploude of the Providence County Sheriff's Office request a declaratory ruling from the Ethics Commission pursuant to Regulation 1025 concerning the following questions: (a) whether active State employees who are empowered to serve process in their official capacities may serve process as private agents outside of their normal working hours; (b) whether retired State employees who were empowered to serve process in their official capacity as State employees may serve process as private agents; (c) whether state agencies may hire private constables to serve writs for a fee when the Sheriff's Department will serve these same writs for no charge; and (d) whether all active State employees may act as private agents to serve process when not working for the State.

For purposes of this declaratory ruling request the deputy sheriffs have made the following representations:

1. The license to serve process is awarded in one of two ways:

(i) The license is awarded to those who hold certain positions as public employees (e.g. deputy sheriffs); and,

(ii) The license is awarded to those acting as private agents. Private parties may obtain a constable license from the presiding judge of one of the courts, including the Superior, District, Family, and Workers' Compensation courts. To obtain such a license, the individual must pass a BCI review, be a notary public and a registered voter, present references, attend a required class, and pass a test.

2. Deputy Sheriffs have full powers to serve writs of all kinds (e.g., temporary restraining orders, eviction notices, commitment, attachment, garnishment, search warrant, etc). Constables may have full or limited authority.

3. State employees in other departments and/or agencies are empowered to serve process in their official capacities (e.g., personnel within the Division of Taxation, investigators at the Ethics Commission).

4. Many of those who obtain constable licenses to act as private agents are also public employees. Some of the occupations represented include: court clerks-Judiciary; state marshals-Corrections; correctional officers-Corrections, etc.

5. Many of those who obtain constable licenses to act as private agents are recently retired public employees. Some of the occupations represented include: retired deputy sheriffs; retired state police officers; retired court clerks, etc.

6. Constables, as well as the five sheriffs' departments, charge a fee to any private entity for the service of process (currently, the Providence County Sheriff's Department charges $20 per writ.) The State of Rhode Island, thus, competes with private process servers for the pool of money expended on the service of process.

7. State agencies are not charged for process service performed by the Sheriff's Department. Some state agencies nonetheless conduct an open and public bidding process and hire private constables to serve writs.

8. Some constables, when acting as private agents, hire the Sheriff's Department to serve writs for third parties.

2. Analysis

Deputy Sheriffs Carmine Valelli, Clifford Monteiro, Richard Silvestri, Lucien Rheume, and Richard Ploude of the Providence County Sheriff's Office request a declaratory ruling from the Ethics Commission pursuant to Regulation 1025 concerning the following questions: (a) whether active State employees who are empowered to serve process in their official capacities may act as private agents to serve process when not working for the State; (b) whether retired state employees who were empowered to serve process in their official capacities may serve process as private agents; (c) whether state agencies may hire private constables to serve writs for a fee when the Sheriff's Department will serve these same writs for no charge; and (d) whether all active state employees may act as private agents to serve process outside of normal working hours.

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 pursuant to R.I. Gen. Laws § 36-14-5(a), by 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 pursuant to R.I. Gen. Laws § 36-14-5(b), by using public office or the confidential information received through holding such office to obtain financial gain pursuant to R.I. Gen. Laws § 36-14-5(d), or by deriving a direct monetary gain by reason of his or her official activity pursuant to R.I. Gen. Laws § 36-14-7(a).

In their request for a declaratory ruling, the petitioners reference Advisory Opinion No. 93-69 in which the High Sheriff of the Providence County Sheriff's Office requested guidance as to whether deputy sheriffs employed by said Office may, after regular work hours, serve process for private attorneys for a fee. In that decision, the Ethics Commission concluded that such employment would be in substantial conflict with the deputy sheriffs' job responsibilities as employees of the State in violation of R.I. Gen. Laws § 36-14-5(a). The Commission based its finding in that opinion on concerns that the deputy sheriffs would essentially be in competition with their own department and, thereby, would be in a position to defer work scheduled to be performed during normal work hours to the hours in which they are employed as private agents. Underlying the conclusion in that advisory opinion was the potential for deputy sheriffs to enjoy an unfair advantage in terms of the ability to solicit private employment opportunities--opportunities made possible by virtue of their positions within the Providence County Sheriffs' Office.

(a) Whether active state employees who are empowered to serve process in their official capacities may act as private agents to serve process when not working for the State.

It is the opinion of the Rhode Island Ethics Commission that a violation of the Code of Ethics would occur if public officials or employees empowered to serve process in their official capacities or employed by an agency involved in the service of process were to accept employment after normal working hours as private agents carrying out the same function for a fee. This decision is based on the findings in an advisory opinion addressing a comparable issue which concluded that deputy sheriffs(1) could not simultaneously serve process as employees of the state and serve process as private agents for a fee. In that matter, the Commission concluded in its discussions prior to issuance of the advisory that "the activities of the deputies, when serving as private paid process servers, would directly conflict with their job responsibilities as employees of the State." Advisory Opinion No. 93-69. The Commission was specifically concerned that deputy sheriffs would be accepting employment in their spare time which directly reflects their official employment and effectively competes with their own department.

The discretion available to deputy sheriffs in carrying out their official duties, and the potential for abuse which this discretion makes possible, leads this Commission to again conclude that such private employment could trigger violations of the Ethics Code. For example, deputy sheriffs and other public officials who serve process in their official capacities are privy to information concerning private clients who have requested the service of process, and said public officials and employees would be in a position to influence such clients, for example, to request their services as private agents. Thus, the existence of a direct relationship between the two positions was established. Consequently, this Commission upholds Advisory Opinion 93-69 in its entirety.

Several advisory opinions have concerned the issue of potential conflicts of interest triggered by outside employment which is comparable to one's official duties. In Advisory Opinion No. 94-16, 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 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." Advisory Opinion No. 94-16. The facts in that matter were distinguishing, however, in light of the fact that performing marriages was not directly comparable to the official responsibilities of city and town clerks.

In Advisory Opinion No. 94-04, the Commission 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. Advisory Opinion No. 94-04. Further, 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..." Advisory Opinion No. 93-89.

The facts in this declaratory ruling request, however, are distinguishing from the matters discussed above. The deputy sheriffs are requesting that the findings in Advisory Opinion 93-69--which concluded that deputy sheriffs may not be engaged as private process servers regardless of whether they serve process in their official capacities--to be generalized to prohibit all state employees from acting as private process servers regardless of whether they are empowered to serve process in their official capacities or work for agencies involved in the service of process.

The Commission concludes that such a broad ruling is not required under the Code of Ethics, and limits itself to affirming Advisory Opinion 93-69.

(b) Whether retired state employees who were empowered to serve process in their official capacities may serve process as private agents.

The Ethics Commission was also asked to rule as to whether retired state employees who were empowered to serve process in their official capacities may serve process as private agents. The Code of Ethics prohibits public officials and employees from representing themselves before any state or municipal agency by which they were employed for a period of one year after officially severing their relationship with said agency pursuant to R.I. Gen. Laws § 36-14-5(e) (4). The intention of this prohibition is to mitigate the possibility of a former public official or employee relying upon his or her contacts and influence within a government entity in order to enjoy consideration not available to the general public. The prohibition in the current statutes does not extend, however, to former employees who provide contract services to the agency by which they had been employed, which is essentially the status of the retired state employees who serve process as private agents.

Several advisory opinions have upheld the one year prohibition when applied to State employees: in prohibiting a former employee with the Rhode Island Department of Environmental Management, who anticipates entering private employment with a consulting firm, from representing himself or any other person before said agency within one year of leaving state service; in prohibiting a former employee of the Rhode Island Department of Human Services and the Department for Children and Their Families, presently seeking employment as a consultant, from providing consulting services to the agencies by which he was employed in connection with any projects with which he was associated as a State employee; and in prohibiting a former employee and consultant for the Division of Airports within the Department of Transportation, being offered a personal services contract which requires negotiating with his former agency, from involvement in any matters involving said agency. Advisory Opinion Nos. 89-02, 90-61, and 90-70. However, a retired state employee serving process as a constable does not constitute an "appearance before his or her former agency" within one year after leaving state service, and is therefore permitted to provide such services without violating the Code of Ethics.

In addition, a Rhode Island Supreme Court declaratory judgement, vacating the Rhode Island Ethic's Commission's Advisory Opinion No. 94-23, concluded that the former Deputy Legal Counsel representing the Rhode Island Department of Employment and Training may continue to represent the State within one year of leaving state service without violating R.I. Gen. Laws § 36-14-5(o) since her services would be provided on a contract basis, as a legal consultant and, as such, would not constitute "employment"(2) as narrowly defined in the statute. The request presently before the Commission is comparable to that matter; the retired state employees accepting employment as private agents to serve process would find themselves outside of the narrowly defined meaning of employment as it presently appears in the Code of Ethics.

Consequently, it is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit retired state employees who were empowered to serve process in their official capacities from serving process as private agents whenever such employment involves directly approaching a state agency to offer such services. Also, no violation will arise for said retired State employees who serve process for private attorneys.

(c) Whether state agencies may hire private constables to serve writs for a fee when the Sheriff's Department will serve these same writs for no charge.

The Rhode Island Ethics Commission's jurisdiction is confined to promulgating and enforcing the Code of Ethics and, consequently, it is not appropriate in this instance to comment on the procurement procedures of state agencies.

(d) Whether all active state employees may act as private agents to serve process when not working for the state.

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics will permit state employees to act as private agents to serve process outside of normal working hours when said employees do not serve process in their official capacities and are not employed by an agency that is responsible for service of process. No provisions of the Code prohibit such practice.

Footnotes

(1)All deputy sheriffs are empowered to serve process irrespective of whether they work in the Writ Division of the Sheriff's Office or not.

(2)In the statute, "employment" is defined through the term "state service," meaning "service in the classified, unclassified and nonclassified services of the state." R.I. Gen. Laws § 36-14-5(o).