Advisory Opinion No. 98-34

Re: Susan Littlefield, VMD

A. QUESTION PRESENTED

The Petitioner, the Public Health Veterinarian, a state appointed position, requests an advisory opinion as to whether she may perform veterinary services for farmers during normal working hours if she does not charge a fee and whether she may charge for such services if performed on her own time.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Public Health Veterinarian, a state appointed position, cannot both provide private veterinary services for which she is paid and exercise discretion in her public employment as to those farmers as it would impair her independence of judgment as to her official duties. R.I. Gen. Laws §36-14-5(b). If another official not subordinate to her can assume her duties as the Public Health Veterinarian as to the farms she services, this conflict would not exist. This analysis does not apply if the Petitioner is not paid for her veterinary services to farmers performed during work hours since it does not constitute other employment. However, by creating such a relationship with farmers over whom she exercises some regulatory control, a conflict of interest may be more likely to exist. Therefore, out of an abundance of caution, another official should take over the Petitioner's public duties as to these farmers.

C. DISCUSSION

1. Facts

The Petitioner is a Public Health Veterinarian for the State of Rhode Island. She works in the Department of Environmental Management. She is responsible for overseeing the care of animals in pet shops, rabies control, and assuring the wholesomeness of Rhode Island produced milk. Part and parcel of these duties is testing of all dairy herds for Tuberculosis and Bruscellosis. This testing is done every three years. When a problem animal is discovered, the entire herd may be quarantined or slaughtered.

The Petitioner represents that some of the few farmers left in Southern Rhode Island do not have access to a veterinarian to provide services to their cows. Given that, she has provided services to a Tiverton farmer who had sick animals at no cost. She has charged him for the costs of the drugs and supplies. She also represents that she has performed these services to this and two other farmers both during and outside her normal work hours.

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 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).

The Commission has previously concluded that a public official or employee cannot hold outside employment that intersects with his/her public responsibilities. The Commission has allowed such outside employment only where the overlap of interests is eliminated through recusal. For instance, in A.O. 96-31, the Commission concluded that two Social Caseworkers for the Department of Children, Youth and Families (DCYF), who in their private capacities operated a graphic design studio on a part-time basis, could provide graphic design services to residential facilities provided that they completed all graphic design services after normal working hours and other officials at DCYF decide where, if necessary, to place developmentally delayed children. See also D.R.95-2 (opining that state employees who served process in their official capacities or were employed by a state agency involved in the service of process could not serve process as private agents outside of normal working hours since the outside employment directly related to their official duties; however, employees who did not serve process in their official capacities and who were not employed by an agency that is responsible for the service of process may serve process as private agents since their official duties and the official duties of their agency do not directly relate to such private employment). And A.O. 97-45 (concluding that Department of Corrections employee could accept private employment as a group counselor for men who are on probation, parole, and electronic monitoring parole provided that she does not participate in activities in her private where her inmates are involved, not accept as clients in her private employment individuals who have a reasonable likelihood of having professional contact with her as a result of her public duties and responsibilities, and in situations where an existing private client becomes involved with the Department of Corrections, she should recuse from participation in her role as Community Program Counselor involving that client.) See also A.O. 97-93, A.O. 97-104, A.O. 97-89, A.O. 96-72, A.O. 95-80.

Here, the Petitioner is trying to help the last of the Rhode Island farmers maintain their herds. She is in essence acting as their private veterinarian since the work is outside the scope of her duties as Public Health Veterinarian. If the Petitioner is paid for her services to the farmers, it is other employment as contemplated by the Code.

The Petitioner is also, as the State Public Health Veterinarian, responsible for overseeing the health of the herd that may in some circumstances require her to quarantine a herd, resulting in a loss to the farmer. Given her regulatory responsibilities and discretionary duties as to these farmers, she cannot both engage in employment with or provide services to farmers over which she must exercise discretion in her public employment as it would impair her independence of judgment as to her official duties. If another official not subordinate to her can assume her duties as the Public Health Veterinarian as to the farms she services, this conflict would not exist. This analysis does not apply if the Petitioner is not paid for her veterinary services to farmers performed during work hours since it does not constitute other employment. However, by creating such a relationship with farmers over whom she exercises some regulatory control, a conflict of interest may be more likely to exist with respect to the discretionary and/or regulatory responsibilities of the Petitioner. Therefore, out of an abundance of caution and to avoid these potential conflicts, the most prudent course would be for another official to take over the Petitioner's public duties as to these farmers.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

Related Advisory Opinions:

95-80

96-31

96-72

97-45

97-89

97-93

97-104

Declaratory Ruling 95-2

Keywords:

Private employment