Advisory Opinion No. 95-50

Re: Michael Cote

A. QUESTION PRESENTED

Whether Michael Cote, a Junior Sanitary Engineer for the Rhode Island Department of Environmental Management (RI-DEM) who is responsible for reviewing assessments of sites contaminated by leaking underground tanks, may establish a part-time consulting business to inspect private residential wells.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner from establishing a private part-time business to inspect residential wells. In rendering this advisory decision, the Commission has relied on the petitioner's representations (1) that the RI-DEM does not regulate private residential wells; and (2) that he, in his capacity as Junior Sanitary Engineer, is not privileged to any confidential information which would benefit his anticipated consulting venture.

C. DISCUSSION

1. Facts

Mr. Cote is employed by the Department of Environmental Management as a Junior Sanitary Engineer for the "Leaking Underground Storage Tank Section," a position which requires him to review assessments for sites contaminated by leaking underground tanks. To supplement his public employment, Mr. Cote plans to establish a part-time consulting business for home-owners with underground wells. As part of his services, the petitioner plans to (1) examine wells for contaminated sources; (2) inspect wells to determine if any additional tests are needed; (3) disinfect wells; and (4) test wells to determine capacity.

According to the petitioner, his employer, RI-DEM, does not test well water quality.(1) The RI-DEM does, however, register well drillers and pump installers.(2) The petitioner advises that, since his services would be limited to the testing of well water quality and/or quantity, he would not have to register with the RI-DEM. The petitioner also advises that, when approaching new clients, he will identify himself as a RI-DEM employee in order to determine if the client has a major issue pending before RI-DEM which could pose a potential conflict.

2. Analysis

Under the Code of Ethics, Mr. Cote may not engage in any private business or professional activity which is in substantial conflict with the proper discharge of his duties for the RI-DEM. See R.I. Gen. Laws § 36-14-5(a). The petitioner may also not use his position or confidential

Mr. Michael Cote -3- June 29, 1995

information gained from his position with the RI-DEM to obtain financial gain for himself or for any business by which he is employed. See R.I. Gen. Laws § 36-14-5(d). Additionally, pursuant to R.I. Gen. Laws § 36-14-5(e), Mr. Cote may not represent himself before any state agency by which he is employed.

At issue in this advisory request is whether the petitioner, an engineer for the Department of Environmental Management, will violate the Code by establishing a part-time consulting business targeting homeowners which utilize well water. After considering Mr. Cote's position at the RI-DEM and the scope of his proposed consulting business, we conclude that there is no inherent conflict between the two activities and, as such, no potential violations of the relevant provisions of the Code. This finding is based on the petitioner's representations that (1) his position with the RI-DEM does not involve the inspection of residential wells thereby entitling him to any confidential information; and (2) he does not have to obtain a license or have his work reviewed by the RI-DEM since this Department does not regulate residential wells.

In reaching our conclusion, we are also guided by past advisory opinions which have permitted an employee subject to the Code to simultaneously own a consulting firm where the employee does not review or consider matters affecting the private business and the interests of the private business do not conflict with the employee's position in any other capacity. See A.0. 92-12 (concluding that an employee of the Rhode Island Department of Administration, who was in charge of energy management for state owned and leased facilities, could simultaneously engage in a private energy consulting business provided that he provided his anticipated services to private clients and local governments and not to any firms which had contracts with the state); A.O. 91-74 (holding that no violation of the Code existed solely by virtue of the fact that the petitioner, the Director of Planning and Development for the City of Providence, simultaneously owned a business and urban development consulting firm in Providence); A.O. 89-60 (concluding that the Code did not prohibit a Conservation Officer for the Department of Environmental Management from simultaneously owning a private trapping business which received calls for services from individuals who had been referred to the trapping business by the Department where the referrals had been made on a rotating basis and

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the employee did not receive preferential or special treatment). Contrast with A.0. 93-30 (advising a member of the Town of Foster Planning Board that he could not simultaneously own a private business engaged in the preparation of surveys and subdivisions of land since a significant number of subdivision plans would be submitted to the Planning Board); A.O. 90-24 (opining that the Code did not permit a manager of the

Rhode Island Juvenile Diagnostic Center in the Division of Juvenile Corrections to simultaneously maintain a part-time position as a consultant/therapist for the Northeastern Family Institute since the employee's activities as a private consultant represented the equivalent of appearances before his agency on behalf of a private individual in violation of R.I. Gen. Laws § 36-14-5(e)(2)).

Although concluding that the petitioner may provide consulting services, the Commission cautions the petitioner against using his position with the RI-DEM to obtain any unfair advantage with potential clients. The petitioner may inform a client of his position if he or she asks for his qualifications/job history and may also inquire whether the client has any matter pending with the RI-DEM. The petitioner should not, however, attempt to improve his position with a client by indicating that he is an employee of the Department thereby suggesting that he has special qualifications or influence with public officials. The petitioner is also cautioned and advised that in the event that his duality of status impairs his independence of judgment as to his official duties or otherwise results in the disclosure of confidential information, he should notify the RI-DEM of his interest and refrain from participating on any such matter.

Footnotes

(1) The petitioner claims that the homeowner is responsible for the quality of residential well water. The petitioner advises, however, that the Rhode Island Department of Health will provide phone consultations and analyze well water in its labs.

(2) According to the petitioner, a well driller is defined as "[a]ny person who engages in drilling, digging, driving, boring, coring, construction, altering or repairing any well" and a pump installer is defined as "[a]ny person who is certified to engage in the installation, removal, alteration or repair of water pumps and appurtenances in connection with any water well including water lines between well and storage land and registered as such by the Department."

Keywords

Private Employment