Advisory Opinion No. 96-72

Re: Edward Degnan

A. QUESTION PRESENTED

A Probation and Parole Counselor with the Department of Corrections requests an advisory opinion as to whether he can be privately employed as a counselor at the Kent House where some of the clients are also on probation.

B. SUMMARY

Based on the representations of the petitioner and the Code of Ethics, it is the opinion of the Rhode Island Ethics Commission that the petitioner may be simultaneously employed by the Department of Corrections as a Probation/Parole Officer and by Kent House as a counselor provided that he does not participate in activities at the Kent House (paperwork or discussion) where his Parole/Probation client is involved or that he recuses himself from participation in his role as Parole/Probation Officer involving that Kent House client. Additionally, if any circumstances should arise whereby this duality of status impairs his independence of judgment as to his official duties, or results in the disclosure of confidential information, he should exercise the recusal section of the Code. R.I. Gen. Laws § 36-14-6.

C. DISCUSSION

1. Facts

The petitioner is a Probation and Parole Counselor with the Department of Corrections. His duties are to be responsible in the rehabilitation of adult offenders who have been placed on Probation or Parole by the District and Superior Courts and the Rhode Island Parole Board. The petitioner may provide a list of agencies where the offender can receive treatment. The petitioner has also represented that he will be returning to his job as a Parole Hearing Officer in the next few weeks. In that position, the petitioner makes findings of probable cause as to whether an individual has violated his parole. These findings are referred to the Parole Board.

The petitioner also has part-time private employment with the Kent House. Kent House is a substance abuse agency which treats individuals; Kent House also provides treatment for Domestic Violence offenders. Some of the patients at Kent House are on probation and their treatment may have been court-ordered or a condition of their probation. At Kent House, the petitioner assists the leader at group meetings as well as prepares the initial intake paperwork. The petitioner represents that patients sometimes ask questions regarding their probation status, but that he refers them to their own Probation or Parole Counselor. Additionally, the petitioner represents that he makes full disclosure as to his public office while at Kent House and that other personnel are available for writing up the initial paperwork if necessary. Currently, an individual on the petitioner's caseload as a Probation Counselor is also attending meetings at Kent House.

The petitioner requests an advisory opinion as to whether his part-time employment at Kent House is prohibited by the Code of Ethics.

2. Analysis

This advisory concerns the issue of whether a Parole/Probation officer may also have private employment as a counselor at the Kent House where its clients may also be on probation. The Rhode Island Code of Ethics provides that a public official shall not have any interest, financial or otherwise, direct or indirect, which is in substantial conflict with the proper discharge of his or her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). The petitioner has a substantial conflict with the proper discharge of his duties or employment in the public interest if he has reason to believe or expect that he or any business associate will derive a direct monetary gain by reason of his official activity. R.I. Gen. Laws § 36-14-7(a). Additionally, the Code prohibits the petitioner from accepting other employment which will either impair his independence of judgment as to official duties or employment or require or induce him to disclose confidential information acquired by him in the course of and by reason of his official duties. R.I. Gen. Laws § 36-14-5(b).

Since the petitioner's private employment is related to his public employment, the Commission must consider the particular facts of the employment to determine if the positions are too intertwined for the petitioner to fulfill his duties in the public interest. The Commission has considered previous requests from public officials where their private employment may impinge upon their public employment. In A.O. 95-80, the Commission considered a similar request and found that Department of Substance Abuse Case Manager/Interviewer in the TASC program could also be employed by Pawtucket Addictions Counseling Service as a substance abuse counselor. The Commission based its opinion on the following: (1) that the petitioner does not counsel clients from the TASC program at his private employment; (2) that the petitioner does not monitor clients from his private employment in his role as a Case Manager; (3) that the petitioner does not intervene as a TASC staff member on behalf of clients at his private employment; and (4) that he does not fill a supervisory or administrative role.

Since the petitioner does not specifically refer parolees or probationers to the Kent House and does not receive any fees from referrals, Section 5(a) is not implicated as he cannot expect to receive a direct monetary gain or loss by reason of his work as a Probation/Parole Officer with the Department of Corrections.

However, some of the given facts may raise issues under Section 5(b) of the Code. Of particular concern is whether the petitioner's private employment at the Kent House will impair his independence of judgment in his public position or whether the Kent House position induces him to disclose confidential information obtained through this work with the Department of Corrections. In his job, the petitioner may take part in discussions or prepare intake paperwork at the Kent House for clients on probation or parole. Given this scenario, the petitioner is in a position where he could divulge confidential information from his Corrections job and may receive information from a Kent House client that may bias his judgment as a Probation/Parole Officer. However, the petitioner notes that until recently none of his public caseload ever appeared before him at Kent House and that he did not prepare the initial paperwork for that client. Additionally, the petitioner represents that in his public position, he does not intercede on behalf of any Kent House client. Finally, in his future position as Parole Hearing Officer, he will not be involved in the probation aspect of the Probation/Parole Office and it would probably result in a decrease of individuals from his public work appearing before him at the Kent House. Additionally, the petitioner represents that if a Kent House client were to appear before him as a Parole Hearing Officer, he would recuse himself.

Based on the representations of the petitioner and the Code of Ethics, it is the opinion of the Rhode Island Ethics Commission that the petitioner may be simultaneously employed by the Department of Corrections as a Probation/Parole Officer and by Kent House as a counselor provided that he either (1) does not participate in activities at the Kent House (paperwork or discussion) where his Parole/Probation client is involved, or (2) recuses himself from participation in his role as Parole/Probation Officer involving that Kent House client. This is based on the potential for a Section 5(b) conflict that would impair the petitioner's independence of judgment. In addition, if any circumstances should arise whereby this duality of status impairs his independence of judgment as to his official duties, or results in the disclosure of confidential information, he should notify the Department of Corrections in writing., of the nature of his interest in any matter, and recuse himself from participating in any such matter. Notice of any recusal must also be filed with the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-6

36-14-7(a)

Related Advisory Opinions:

95-80

Keywords:

private employment