Advisory Opinion No. 99-136

Re: Department of Environmental Management

QUESTION PRESENTED

The Chief Legal Counsel of the Department of Environmental Management (DEM), on behalf of the agency, requests an advisory opinion as to whether the DEM and the Department of Transportation (DOT) may enter into an agreement whereby the DOT will reimburse the DEM for services relating to reviewing wetland permits on DOT projects.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Department of Environmental Management’s (DEM) preferred option of entering into an agreement with the Department of Transportation (DOT) whereby the DOT will reimburse DEM for services of up to two full-time positions in the wetlands permitting offices of DEM and the new employees would be assigned to work on DOT and other unrelated projects is not prohibited by the Code of Ethics.

The Code of Ethics prohibits public officials and employees from engaging in activities that would constitute a substantial conflict of interest including matters affecting one’s employer. See R.I. Gen. Laws §§36-14-5(a), 7(a), 5(d). The Commission previously has concluded that public officials and/or employees may not participate in matters affecting their public employer, including matters that concern the same sovereign. See A.O. 98-99 (Narragansett Bay Commission member advised to recuse on matters affecting Rhode Island Resource Recovery Corporation where he is employed as legal counsel should NBC and the RIRRC enter into joint venture); A.O. 98-37 (Treasury Department employee advised that, if elected as a State Representative, he would be required to recuse on matters affecting the Treasury Department); See also A.O. 99-89, A.O. 98-104, A.O. 95-43.

Here, the DEM would hire additional staff to serve its operational needs. Since the individuals’ salaries would be paid by DEM, the employees would work in the same organizational structure as other employees at DEM, and their employment would not depend upon personnel or supervisory decisions made by the DOT, the individuals would be employees solely of the DEM. Therefore, a substantial conflict of interest is not present simply by virtue of the DOT providing reimbursement of costs to the DEM. See A.O. 97-113 (Woonsocket Housing Authority member advised that she could participate on Police Department issues although she was a Civil Defense Aide assigned to the Police Department since she was actually employed by the City and the Police Department did not exercise any personnel or supervisory decisions with regard to her employment). We note that the Ethics Commission makes no decision or conclusion on the propriety or legality of this arrangement under any other state and personnel rules.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-7(a)

Related Advisory Opinions:

99-89
98-104
98-99
98-37
97-113
95-43

Keywords:

Agency Benefit
Regulatory Decisions