Advisory Opinion No. 98-106

Re: Edward T. Sylvia, Jr.

QUESTION PRESENTED

The Petitioner, a Narragansett Water Department employee, a municipal employee position, requests an advisory opinion as to whether he may, in his private capacity, perform plumbing in the Town of Narragansett given his public employment.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Narragansett Water Department employee, a municipal employee position, may engage in private employment as a plumber in the Town of Narragansett in that his public and private duties do not overlap. Additionally, we conclude that to the extent that the Petitioner seeks or obtains plumbing or sewer connection permits from various Departments within the Department of Public Works, exclusive of the Water Department, it does not constitute appearing before one's own agency because this particular activity is ministerial in nature. See R.I. Gen Laws § 36-14-5(e). The Petitioner is cautioned that that he may not in any way use his public position to solicit private business. See R.I. Gen Laws § 36-14-5(d).

The Code of Ethics provides that a public official or employee may not accept employment that would impair his or her independence of judgment. See R.I. Gen Laws § 36-14-5(b). Additionally, a public official or employee may not participate in his or her public employment in any matter in which he or she has an interest in substantial conflict with the proper discharge of his or her duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). The Code of Ethics also prohibits a public official from using his or her public office for pecuniary gain. See R.I. Gen Laws § 36-14-5(d). Finally, Section 5(e) of the Code provides that a public official or employee may not appear before his or her own agency.

The Commission has concluded in some instances that a public employee may not accept private employment. In Advisory Opinion 96-47, the Commission opined that a member of the 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. See also D.R. 95-2 (Deputy Sheriffs could not also serve process in private capacity since they would be in competition with themselves).

However, the Commission has found that other private employment is not necessarily barred by the Code of Ethics. For instance, in Advisory Opinion 97-39, the Commission concluded that a Jamestown Police Officer could operate a private animal nuisance removal business given that his normal duties did not involve animal nuisance removal and provided he did not solicit business or use public resources in pursuit of private employment. See also A.O. 97-89 (State Police Officer could, in his private capacity, negotiate with a communications company that has had business dealings with the State Police even though he had negotiated with other companies on behalf of the State Police regarding similar issues, since he had not negotiated or otherwise communicated with this particular company in his capacity as a state employee and since there was no indication that the negotiation would impact the State Police or result in the disclosure of confidential information); A.O. 97-98 (Superior Court Clerk could accept other employment for document retrieval company and retrieve documents from the Superior Court provided she did not have special access, other than as member of the public, to information at the Court); A.O. 96-72 (Probation Officer could accept employment as a counselor provided that he did not participate in activities at the Kent House concerning his Parole/Probation clients and recused himself in his role as Parole/Probation Officer involving Kent House clients), and A.O. 97-93 (Health Department Non-Disciplinary Alternative Program Advisory Panel member could not participate in matters where a nurse had selected the Petitioner's private employer as her case manager nor serve as a case manager in her private employment for nurses in this program).

Additionally, the Commission has concluded that a public employee may submit information to a different division of his or her employer without conflict under the Code of Ethics. See A.O. 97-2 (Transportation employee could submit material to a different Section within the Department given that it was ministerial in nature) and A.O. 97-1 (DEM employee could submit material for approval to other Divisions within DEM so long as it was ministerial in nature).

The Petitioner represents that the Water Department employs him as an operator. The Water Department and other Departments, including the Sewer Department, Highway Department, and the Building Official are all within the Engineering Department in the Department of Public Works. The Water Department provides service to a portion of the homes in Narragansett with a private water company servicing the rest. In his private employment as a master plumber, the Petitioner may be required to take out plumbing permits from the Building Official or sewer permits through the Sewer department, which are signed by the Town Engineer. However, the Petitioner represents that he does not have a supervisory relationship nor is there an interrelationship with his employment in the Water Department and either the Sewer Department or the Building Official. Additionally, the Petitioner states that he will not do plumbing in town-owned buildings.

Here, although the Petitioner works in the Department of Public Works/Engineering Department which encompasses his own Department, he does not have an interrelationship with or supervisory authority over other Departments or individuals who issue permits or conduct inspections of his plumbing work. Therefore, the prohibitions of Sections 5(a) and 5(b) do not apply. Additionally, although the Commission has consistently concluded that individuals subject to the Code of Ethics may not appear before their own agency or board prior to the expiration of one year from their date of separation, the prohibition does not extend to the performance of ministerial acts. Therefore, the Petitioner may not have any personal involvement with a matter before the Department of Public Works that goes beyond ministerial activities, such as hand delivering documents, reviewing files, or submitting the permit applications at issue. See R.I. Gen Laws §36-14-5(e). The Petitioner is also cautioned that he may not in any way use his public position to solicit business. See R.I. Gen Laws §§ 36-14-5(d).

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(e)

Related Advisory Opinions:

98-5

98-42

98-92

97-1

97-2

97-39

97-45

97-93

97-104

96-72

95-80

Keywords:

Private employment