Advisory Opinion No. 99-119

Re: Dawn M. McCormick

QUESTION PRESENTED

The petitioner, the Pawtucket Registrar of Voters, a municipal employee position, requests an advisory opinion as to whether, as a private consultant to a software vendor that provides services to municipalities, she may instruct another municipality’s election staff in the use of a software package presently used by the Pawtucket Board of Canvassers & Registration.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Pawtucket Registrar of Voters, a municipal employee position, may provide instruction to another municipality’s election staff as a private consultant for a municipal software vendor, provided that 1) she does not have any authority or control as to the selection or supervision of the vendor for services provided to the Pawtucket Board of Canvassers & Registration; 2) she does not participate in the release of payments to the vendor; 3) she does not disclose any confidential information obtained during the course of her official duties; and 4) she completes all consultant work on private time and without the use of public resources.

The petitioner advises that the Pawtucket Board of Canvassers & Registration contracted with Intertown Municipal Administrative Systems for the provision of an election software package in 1996 and has an annual maintenance agreement with the vendor. She initially provided input to the company as to the requirements for managing election data but represents that she has no authority or control over Intertown’s contract. While she presently releases funds for payment to Intertown as a matter of convenience, she indicates that the Board may perform that duty. She also orders the Board’s computer supplies from Intertown as part of her official duties. The petitioner further advises that Intertown has asked her to instruct another municipality’s election staff in the use of its software in the evenings.

Under the Code of Ethics, the petitioner may not engage in any business or professional activity that is in substantial conflict with the proper discharge of her duties or employment in the public interest. See R.I. Gen. Laws §§ 36-14-5(a) and 7(a). She also may not accept other employment that impairs her independence of judgment as to her official duties, or disclose confidential information acquired in the course of her official duties. See R.I. Gen. Laws §§ 36-14-5(b) and (c). Further, the provisions of R.I. Gen. Laws § 36-14-5(d) prohibit the petitioner from using her position or confidential information received through her position to obtain financial gain for herself or for any business by which she is employed. R.I. Gen. Laws § 36-14-5(d). The petitioner may not accept any reward or promise of future employment in return for or based on any understanding or expectation that her vote, official action or judgment would be influenced thereby. See R.I. Gen. Laws § 36-14-5(g). Finally, pursuant to R.I. Gen. Laws § 36-14-5(e), the petitioner may not appear before her own agency on behalf of herself or any other person or entity, including her private employer.

After considering the petitioner’s request and the relevant provisions of the Code of Ethics, we conclude that the petitioner may instruct another municipality’s election staff in the use of a software package, provided that 1) she does not have any authority or control as to the selection or supervision of the vendor for services provided to the Board of Canvassers; 2) she does not participate in the release of payments to the vendor; 3) she does not disclose any confidential information obtained during the course of her official duties; and 4) she completes all consultant work on private time and without the use of public resources.

Here, the petitioner represents that although she previously was involved in the selection of the vendor and she utilizes the software purchased from that vendor, discretionary duties relating to that vendor may be reassigned to the Board or other personnel not subordinate to her. For instance, ordering computer supplies from the vendor or releasing payments to the vendor for those supplies or any other matter are discretionary decisions that the petitioner could not make if she accepts private employment with that vendor. Also, the software instruction will take place on private time and will not involve the use of public resources. Finally, the Commission does not have any evidence to suggest that she was offered the position based on any actions she took at the Board regarding Intertown. See R.I. Gen. Laws § 36-14-5(g). Whether the reassignment of duties from the petitioner to some other person(s) so that she may accept this private employment opportunity adversely impacts the functioning of her public employer is a policy decision for the Board, not an issue for this Commission.

The Code also prohibits the petitioner from disclosing any confidential information, which she acquired as the Registrar of Voters. Further, we remind the petitioner that Section 5 (e) bars her from representing Intertown before the Board for a period of one year after she has officially severed her position with that agency. Notices of recusal should be filed with both the Ethics Commission and the Board of Canvassers in accordance with R.I. Gen. Laws § 36-14-6. Finally, if the petitioner believes that her independence of judgment as to her official duties may be impaired or result in the disclosure of confidential information, she should refrain from accepting such private employment.

This opinion is consistent with past advisory opinions where we have given approval for employees to accept outside employment provided that a) the employees’ official duties for their agency do not directly relate to their private employment; b) they complete the work before or after their normal working hours; and c) the employees do not appear before their own agency. See A.O. 99-102 (advising that a Providence Water Supply Board employee may work for a computer vendor since he did not have any authority or control over the vendor for work provided to the Water Supply Board); A.O. 96-31 (concluding 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); 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 should 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); A.O. 97-98 (advising Superior Court Clerk that she could accept other employment so long as she did not receive special access of information from the Court in performing her private employment); A.O. 99-70 (concluding that DEM employee could work for a private company so long as he did not submit material for approval before his former Division until one year from the official severance of his position with that Division).

Code Citations:

36-14-5(a)
36-14-5(b)
36-14-5(c)
36-14-5(d)
36-14-5(e)
36-14-6
36-14-7(a)

Related Advisory Opinions:

99-114
99-102
99-84
99-77
99-70
99-38
99-5
98-111
98-106
98-11
97-98
97-93
97-88
97-1
96-72
96-42
96-31
95-80
D.R. 95-2
94-4

Keywords:

Discretionary Authority
Private Employment
Vendors