Advisory Opinion No. 97-104

Re: Maureen Maigret

A. QUESTION PRESENTED

The Petitioner, Executive Director of the Long Term Care Coordinating Council, a state employee position, requests an advisory opinion as to whether she may accept private employment as a consultant or a lobbyist for entities that may have an interest in similar issues.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Executive Director of the Long Term Care Coordinating Council, a state employee position, may accept outside employment so long as neither she nor her prospective employers will be specifically benefited by her participation in matters at the Coordinating Council and that such employment does not directly relate to her responsibilities at the Coordinating Council. However we caution the Petitioner that should such cases arise, she should seek further guidance of the Commission or recuse herself from participation. Additionally, given that the Petitioner's proposed lobbying activities would likely concern matters in which the State has an interest, the Petitioner could not both lobby and be employed by the Long Term Care Coordinating Council. See Commission Regulation 5008. Also, since the Petitioner's salary is funded through the General Assembly, Section 5(e) of the Code would prohibit her from appearing before the General Assembly.

C. DISCUSSION

1. Facts

The Petitioner was hired as the Executive Director of the Long Term Care Coordinating Council on a part-time basis in January 1997. The position is funded by the Joint Committee on Legislative Services and reports to the Chair of the Council, Senator Fogarty. The Petitioner's responsibilities include general administrative support; research and analysis of long term care policy; assisting in the development of the Council's recommended planning, legislative and advocacy activities; preparing written materials such as reports, issue briefs, testimony, and general communications; and liaison work with Council members and other interested persons.

The Long Term Care Coordinating Council, pursuant R.I. Gen. Laws §23-17.3, develops and coordinates state policy concerning all forms of long-term health care for the elderly.

The Petitioner requests an advisory opinion as to types of work that she may pursue on her own time. She presents three specific opportunities:

1. To work as a consultant for the Block Island Health Services and it's Elder Care Task Force. The position involves planning a program for elder care services for Island residents. It is funded through a Rhode Island Foundation grant.
2. To work for a provider of residential care in the area of staff training and quality management. This provider does not currently receive state funds, but may in the future receive subsidies for low-income clients.
3. To work as a lobbyist for the Rhode Island Nurses Association.

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 or 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 or any family member or 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 that 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). Finally, R.I. Gen. Laws §36-14-5(e) provides that a public official may not appear before his/her own agency.

This Commission has issued many advisory opinions concerning the issue of potential conflicts of interest triggered by outside employment. In A.O. 95-80, the Commission 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 set out three factors that have generally led the Commission to rule against allowing outside employment among public employees. First, the Petitioner's outside employment are comparable to his responsibilities in his public employment. 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, his 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 Commission found that this private employment did not violate the Code of Ethics based on the following safeguards: (1) the petitioner does not counsel clients from the TASC program at his private employment; (2) the petitioner does not monitor clients from his private employment in his role as a Case Manager; (3) the petitioner does not intervene as a TASC staff member on behalf of clients at his private employment; and (4) he does not fill a supervisory or administrative role. See also A.O. 96-72, A.O. 96-31, A.O. 97-45.

In several other opinions the Commission has found an overlap of responsibilities that could preclude participation or private employment. In A.O. 96-47, the Commission concluded that a member Board of Examiner of Electricians could not teach continuing education classes mandated for electricians and journeymen in the State given that the Board of Examiners of Electricians establishes the continuing education program and provides advice and recommendations on licensing. Additionally, serving as a paid guest speaker, taking a leave of absence or recusing on matters relating to continuing education, did not resolve the Petitioner's conflict of interest. However, the Commission did not find the same conflict if the Petitioner were to teach the class pro bono (not charging a fee, but receiving reimbursement for verifiable out-of-pocket expenses). See also A.O. 96-99 (finding that a member of the Narragansett Bay Commission does not have a substantial conflict with the proper discharge of his duties in the public interest so long as he recuses from matters specifically affecting the electroplating industry given his ownership in a company regulated by the Narragansett Bay Commission and that he is President of the Rhode Island Contract Electroplaters).

The Commission has concluded that some outside employment is unrelated to a public official's duties and thus does not create a conflict of interest. See A.O. 94-4 (concluding that the Director of Parks and Recreation could simultaneously serve as an investor or part-time employee of a company that manages athletic events, organizes sport tours, and conducts fundraisers for non-profit agencies since the only relation between the two positions was that they involve sports); A.O. 90-16 (Woonsocket Public Safety Director could be simultaneously employed by a credit union, which has also served as the Woonsocket municipal employees credit union for the past twenty years); and A.O. 97-39 (concluding that a police officer could have a business concerning repeated animal nuisance problems since his ordinary duties generally do not include handling nuisance animals). Similarly the Commission in A.O. 92-23 concluded that a RIHMFC Board member could also work as a consultant on a real estate project since it receives no funding whatsoever from RIHMFC or the State of Rhode Island, and that RIHMFC's participation is limited to an annual inspection of the property. Also, in A.O. 97-89, the Commission found that a State Police Officer could, in his private capacity, negotiate with a communications company that has had business dealings with the State Police and concluded that although he had negotiated with other companies on behalf of the State Police regarding similarissues, he had not negotiated or otherwise communicated with this particular company in his capacity as a state employee. Further, the Commission concluded that there was no indication that the negotiation would impact the State Police or result in the disclosure of confidential information.

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. In 1992, 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 A.O. 92-12. However, the Commission found that if a company no longer had a contract with an agency, that an employee could accept private employment as a consultant with a public relations, marketing, and advertising firm. 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 A.O. 92-2.

Here, the Petitioner is considering private employment related to long term care for the elderly. In the first instance, she would work as a consultant developing a plan for Block Island. Her potential employer does not receive state funds. The work may be dealing with some of the same issues as the Council, but given that her private responsibilities would be to set up a program for elder care services, her official responsibilities do not appear to be directly related and therefore do not represent a substantial conflict of interest under the Code of Ethics.

The second prospect concerns staff training and quality management for a residential care provider. The Petitioner represents that while she was been employed by the Council, it has not developed its own standards as to staff training, but has supported and encouraged the State to follow the Federal guidelines in this area. Additionally, the Long Term Care Coordinating Council has been involved in policy issues relating to residential care such as conducting surveys of the providers, developing legislation to strengthen regulatory standards for residential care and to develop an assisted living Medicaid demonstration program. Since the Petitioner has not taken part in shaping a standard for training and that the provider would not likely be specifically benefited by the Petitioner's official actions, no inherent conflict of interest is present. Additionally, in the future this provider may receive state funds for low income clients. However, this is not the same as a "vendor" or state contract relationship and therefore, in and of itself, does not create an impermissible conflict. Nonetheless, the Petitioner should be cognizant of situations in her public employment that may directly affect her private employment. In such cases, she should either seek further guidance of the Commission or recuse herself from participation in accordance with Section 6 of the Code. Also, when considering other private employment, she should contemplate whether the particular employment is so related to her public employment so as to create an inherent conflict or to affect her independence of judgment as Executive Director.

The Petitioner also requests guidance on whether she may conduct lobbying activities on behalf of the State Nurses Association. The Commission has considered advisory opinions where a public official or employee or former employee sought to perform lobbying activities in his/her private capacity. In A.O. 93-95, the Commission concluded that a State Retirement Board Member could not participate in lobbying activities on the behalf of the Federation of Teachers. This opinion was based on Regulation 5008 which prohibits a state appointed or elected official from acting as agent or attorney for anyone other than the state or state agency in connection with any particular matter in which the state or state agency is a party or has a direct and substantial interest. The Petitioner's participation at the General Assembly was limited to the provisions of Regulation 36-14-7003 which allows public officials to express his or her own viewpoints in a public forum on any matter of general public interest, i.e., testimony before committees of the Assembly as otherwise available to members of the general public.

In A.O. 95-97, the Commission concluded that the Chief of the Office of Environmental Coordination should not carry out lobbying efforts for a non-profit entity when such lobbying efforts involve individuals or businesses that currently have, or potentially may have, business before her division of DEM. The Commission noted that the Petitioner could recuse herself from matters that involve or affect individuals or businesses that she may lobby, but that Commission Regulation 36-14-5003 weighs against public officials or employees placing themselves in positions in which frequent recusals from these public responsibilities are required.

Additionally, the Commission has concluded that revolving door issues may or may not preclude an individual from performing lobbying activities. In A.O. 97-18, the Commission concluded that a former Senator could not represent the interests of Common Cause of Rhode Island before the State Senate until one year after his term of office in the Senate expired although neither he nor Common Cause would derive any financial benefit from the proposed legislation. However, the Commission concluded that he may represent Common Cause's interest before the branch of the General Assembly of which he was not a member; i.e., the House. See also A.O. 96-11 (concluding that a former state employee could become a registered lobbyist however, the former State Budget Analyst may not represent himself, any other person or entity, or act as an expert witness before the State Budget Office -- the agency by which he was employed -- for a period of one year after having officially severed his position with that office).

Here, the Petitioner is employed as the Executive Director of the Long Term Care Coordinating Council that is funded by the Joint Office of Legislative Affairs. She has been asked to perform lobbying activities on behalf of the Rhode Island Nurses Association. Given that such lobbying activities would likely concern matters in which the State has an interest, the Petitioner could not both lobby and be employed by the Long Term Care Coordinating Council. See Commission Regulation 5008. Additionally, since the Petitioner's salary is funded through the General Assembly, Section 5(e) of the Code would prohibit her from appearing before the General Assembly.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(e)

36-14-5008

Related Advisory Opinions:

97-89

97-45

97-39

97-18

96-99

96-72

96-47

96-31

96-11

95-97

95-80

94-4

93-5

92-23

92-2

90-16

Keywords:

Lobbying

Private employment

Revolving door