Advisory Opinion No. 97-93

Re: Sharon Goldstein

A. QUESTION PRESENTED

The Petitioner, Health Department Non-Disciplinary Alternative Program Advisory Panel member, a state appointed position, requests an advisory opinion as to 1) whether she may also sit on the Eligibility Committee given that she is employed as a case manager for one of the treatment providers to the program and 2) whether she may act as a case manager for nurses accepted into the Non-Disciplinary Alternative Program.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Health Department Non-Disciplinary Alternative Program Advisory Panel member, a state appointed position, may also sit on the Eligibility Committee since she does not recommend nurse applicants to a provider/case manager. However, she should recuse herself from case management activities related to a nurse participant in the Non-Disciplinary Alternative Program and also as an Eligibility Committee and Advisory Panel member with regard to a particular nurse once the nurse has chosen the Petitioner's employer to serve as her case manager. The bases for this opinion are the potential for a substantial conflict of interest in matters concerning her employer, and the impairment of her independence of judgment in such matters.

C. DISCUSSION

1. Facts

Elizabeth Shelov, Public Ethics Officer for the Department of Health, requests an advisory opinion on behalf of a volunteer member of the Health Department Non-Disciplinary Alternative Program Advisory Panel member. (The advisory opinion request originally concerned two members, Ms. Goldstein and Ms. Lang. However, Ms. Lang has withdrawn her request. Although Ms. Lang’s position will be held by another person employed by RIEAP, without more specific information about the particular person and his/her employment, we cannot opine as to whether the same restrictions will apply.) The Panel is made up of eight volunteers pursuant to statute and is charged with developing a program for nurses seeking assistance for alcohol and/or drug abuse problems. As part of the Program's design an Eligibility Committee was created. The Eligibility Committee is made up of three of the Advisory Panel members who serve on a short-term, rotating basis. The Eligibility Committee first reviews a nurse's application to determine if the nurse meets certain eligibility requirements. Assuming the nurse meets the requirements, the nurse then selects a case manager/provider from a list provided by the Eligibility Committee. The case manager evaluates the nurse and reports back to the Eligibility Committee. The Eligibility Committee either accepts or rejects the nurse applicant from the Program. If the nurse applicant is accepted into the Program, the case manager will be involved with the applicant and will make periodic reports to the Eligibility Committee and/or Advisory Panel. The case manager is paid by the nurse's employer or the nurse.

The Petitioner is an Advisory Panel member and also is employed as a case manager with one of the treatment providers on the Program list. The Petitioner requests advice, given her position on the Panel and her employment, as to whether she may sit on the Eligibility Committee and, if so, whether she may act as a case manager for nurses accepted into this Program.

2. Analysis

The Code of Ethics provides that public officials and employees shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction which is in substantial conflict with the proper discharge of their duties in the public interest. A substantial conflict of interest occurs if an official or employee has reason to believe or expect that he or she or any family member or business associate, or any business by which he or she is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a). Additionally, the Code provides that an official or employee shall not accept other employment which will either impair independence of judgment as to official duties or induce the disclosure of confidential information acquired in the course of and by reason of official duties. R.I. Gen. Laws § 36-14-5(b). Finally, an official or employee shall not use their public office or confidential information received through that public office to obtain financial gain, for themselves, a business associate, or an employer. See R.I. Gen. Laws § 36-14-5(d).

Since the Petitioner's private employment is related to her public office, the Commission must consider the particular facts of the employment to determine if the positions are so inextricably related as to make it impossible for the Petitioner to fulfill her duties in the public interest while simultaneously employed in a field over which she exercises regulatory authority. The Commission has considered previous requests from public officials where their private employment was closely related to their public duties. In A.O. 95-80, the Commission found that a Department of Substance Abuse Case Manager/Interviewer in the TASC program could also be employed by the Pawtucket Addictions Counseling Service as a substance abuse counselor. The Commission based its opinion on the following: (1) that the petitioner did not counsel clients from the TASC program at his private employment; (2) that the petitioner did not monitor clients from his private employment in his role as a Case Manager; (3) that the petitioner did not intervene as a TASC staff member on behalf of clients at his private employment; and (4) that he did not fill a supervisory or administrative role. Similarly, in A.O. 96-72, the Commission concluded that the Petitioner could work as a Parole/Probation Officer while working at Kent House provided he did not specifically refer parolees or probationers to the Kent House and provided that he either (1) did not participate in activities at the Kent House (paperwork or discussion) where his Parole/Probation client was involved, or (2) recused himself from participation in his role as Parole/Probation Officer involving that Kent House client. See also A.O. 97-45 (concluding that a Community Program Counselor in the Department of Corrections' Community Confinement Program could accept private employment as a group counselor for men who are on probation, parole, and electronic monitoring parole provided that she did not participate in activities in her private employment at the Counseling and Psychotherapy Center of Greater Boston where her inmates were involved. In addition, she could not accept as clients in her private employment individuals who had a reasonable likelihood of having professional contact with her as a result of her public duties and responsibilities. In situations where an existing private client were to become involved with the Department of Corrections, she was advised to recuse from participation in her role as Community Program Counselor involving that client.) See also A.O. 92-49 (concluding that since members of the Building Code Standards Committee are statutorily charged with developing and supervising the continuing education program, no members of the Building Code Standards Committee could teach courses in those programs without violation of the Code of Ethics. Such simultaneous activity, by being in charge of the program, and teaching within the program itself, was found to represent an inherent conflict of interest with the proper discharge of duties in the public interest.)

In this matter, the Petitioner's employer is on the Program's list of treatment providers/case managers. The Petitioner, as an Eligibility Committee member, plays no role in recommending a particular provider/case manager. Additionally, at this time there are three provider/case managers available other than her employer. Given that the Petitioner plays no role in recommending case managers to nurse applicants, her sitting on the Eligibility Committee does not constitute a per se violation of the Code of Ethics. However, if the nurse applicant selects the Petitioner's employer as the case manager, she must recuse from any further participation as to that nurse applicant given that her independence of judgment may be impaired and that her actions may impact upon her employer, constituting a substantial conflict of interest.

Finally, consistent with the Commission's previous opinions, we conclude that the Petitioner may not serve as a case manager for nurses in the Health Department's Non-Disciplinary Alternative Program. For her to do so, given the direct regulatory responsibility vested in the Advisory Panel, would create a substantial conflict of interest with her duties in the public interest as an Advisory Panel and/or Eligibility Committee member, and also would impair her independence of judgment as to her official duties. Therefore, in these and/or any other circumstance where this duality of status impairs her independence of judgment as to her official duties, or results in the disclosure of confidential information, she should notify the Department of Health in writing of the nature of her interest in any matter, and recuse herself 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:

97-45

96-72

95-80

92-49

Keywords:

Private employment