Advisory Opinion No. 96-104

Re: Jean Lambert

A. QUESTION PRESENTED

The petitioner, Legal Counsel for the Department of Environmental Management, requests an advisory opinion as to whether a Department employee may teach an aerobics class at the Department for other employees either during the instructor's and employees' lunch hour or after work.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Department of Environmental Management ("DEM") employee does not appear to have an interest in substantial conflict with her duties as a Senior Sanitary Engineer if she were to teach an aerobics class at DEM since the aerobics position is unrelated to her current employment. Additionally, the employee did not have any decision making ability with regard to whether or how to institute an exercise program at DEM nor is she being paid by DEM. Additionally, there does not appear to be any loss to the State as a result of the program and may in fact create a more conducive environment for its employees. The Commission also concludes that the use of the cafeteria under the particular facts of this matter does not create any impermissible conflicts under the Code of Ethics as it will be used during non-work hours. While there may be issues that DEM must address with the State Purchasing Office, Department of Administration, or Attorney General's Office as to use of state property, the issues relating to such do not fall within the purview of this Commission.

C. DISCUSSION

1. Facts

The Legal Counsel for the Department of Environmental Management ("DEM") requests an advisory opinion on behalf of the Department and Jean Lambert, a DEM employee. Specifically, DEM would like to support its employees in their efforts to establish an exercise program after work or during lunch hour. The exercise program would take place in the cafeteria at DEM at 235 Promenade Street in Providence. An employee, Jean Lambert, who works for DEM as a Senior Sanitary Engineer is also a certified aerobics instructor and is willing to teach the class. The Department would like the program to take place three times per week for its employees. Legal Counsel represents that Ms. Lambert would charge $2.00 per person per class.

Legal Counsel raises specific concerns about the use of Department premises since the aerobics instructor would be using state property for personal gain.

2. Analysis

The Code of Ethics provides that the Petitioner shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment, transaction which is in substantial conflict with the proper discharge of her duties in the public interest. A substantial conflict of interest occurs if the Petitioner has reason to believe or expect that she, a business associate, or any business by which she is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, the Code provides that the Petitioner shall not accept other employment which will either impair her independence of judgment as to her official duties or induce her to disclose confidential information acquired by her in the course of and by reason of her official duties. R.I. Gen. Laws § 36-14-5(b).

In this matter, DEM would like to employ an aerobics instructor to teach classes on state property, but not on state time. Ms. Lambert does not appear to have an interest in substantial conflict with her duties as a Senior Sanitary Engineer since the aerobics position is unrelated to her current employment. Ms. Lambert also did not have any decision making ability with regard to whether or how to institute an exercise program at DEM, nor is she being paid by DEM. The Commissioner of DEM has the authority and control in this matter. Finally, there does not appear to be any loss to the State as a result of the program and may in fact create a more conducive environment for its employees.

The other issue in this matter is whether DEM is required to submit to a bidding or other process because of the use of state property; i.e., the paid class convening rent-free on DEM/State property. The Commission concludes that the use of the cafeteria described above under the particular facts of this matter does not create any impermissible conflicts under the Code of Ethics as it will be used during non-work hours. There may be issues, however, that DEM must address with the State Purchasing Office, Department of Administration, or Attorney General's Office as to use of state property.

Code Citations:

36-14-5(a)

36-14-7(a)

Related Advisory Opinions:

96-41

Keywords:

agency benefit