Advisory Opinion No. 2013-41 RHODE ISLAND ETHICS COMMISSION Advisory Opinion No. 2013-41 Approved: December 17, 2013 Re: Dawne Broadfield QUESTION PRESENTED: The Petitioner, the Administrative Support Specialist for the Rhode Island Board of Examination and Registration of Architects, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from working, on her own time, as the Executive Administrator for the New England Conference of the National Council of Architectural Registration Boards. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Administrative Support Specialist for the Rhode Island Board of Examination and Registration of Architects, a state employee position, is not prohibited by the Code of Ethics from working, on her own time, as the Executive Administrator for the New England Conference of the National Council of Architectural Registration Boards. The Petitioner is the Administrative Support Specialist for the Rhode Island Board of Examination and Registration of Architects (“Architect Board”), which is a division of the Rhode Island Department of Business Regulation (“DBR”). The Architect Board is composed of five (5) architects who are appointed by the Governor with the advice and consent of the Senate. R.I. Gen. Laws § 5-1-3. The Architect Board oversees the licensing and registration of all architects practicing in the state of Rhode Island. The Petitioner represents that she is the only administrative staff member for the Architect Board. She states that she performs all of the tasks relative to the operation of the Architect Board and the registration of architects in Rhode Island, including responsibilities related to open meetings requirements, record keeping, and bill paying. She represents that the Architect Board makes policy decisions, promulgates rules and regulations, and reviews license applications. The Petitioner informs that the Architect Board is a member of the National Council of Architectural Registration Boards (“NCARB”).[1] She represents that NCARB administers the national Architect Registration Exam and designs tools and model procedures for jurisdictions to apply to their regulation of the requirements for licensure, ranging from internship guidelines, licensing examinations, and certifications for reciprocal licensing. She states that NCARB also serves as a repository for each architect’s record of qualifications for licensing, including education, internships and test scores. She informs that when a person applies to become a registered architect in Rhode Island they must transfer their test scores and record from NCARB as part of the licensing process. She further represents that her official duties at the Architect Board require her to possess knowledge of NCARB’s Model Laws. The Petitioner states that NCARB operates six (6) regional conferences, with Rhode Island’s Architect Board being a member of Region 1, The New England Conference of Architectural Registration Boards (“NECARB”).[2] She informs that each region is responsible for its own method of organization, objectives, meetings, finances and the hiring of an Executive Administrator. She represents that NECARB holds three (3) meetings a year. She further informs that all six (6) New England states pay membership dues to NECARB. She states that NECARB does not engage in any licensing work, but primarily discusses policy matters and may make suggestions for Model Rule amendments to NCARB. The Petitioner informs that in February 2013, NECARB posted an opening for a part-time Executive Administrator. She states that she applied for the position, given that it is common for state architect board administrators to also work as a regional NCARB conference administrator. She represents that she was hired for the position on June 21, 2013, and she began working as the Executive Administrator to NECARB on July 1, 2013. However, she represents that she has not accepted payment and will not accept payment for this private employment until she receives an advisory opinion from this Commission. She states that her duties as Executive Administrator of NECARB do not involve decision-making and consist of performing all of the necessary administrative tasks in support of the three (3) NECARB meetings each year. The Petitioner represents that her NECARB duties require her to work about fifteen (15) hours per month for which she will be paid $5,400 per year and will be reimbursed for any out-of-pocket expenses, such as travel to the three (3) NECARB meetings. She informs that she has and will continue to provide services to NECARB on her own time, outside of state work hours, and without the use of any Architect Board or DBR resources or equipment. She further informs that NECARB has provided her with a laptop and a printer to perform required work at home. She informs that if she needs to attend NECARB meetings during regular business hours, she will discharge vacation time. The Petitioner states that her private employment is unrelated to her official duties as the Administrative Support Specialist for the Architect Board. She represents that her state supervisor has no objection to her private employment for NECARB. She states that she has no decision-making authority or the ability to affect the financial objectives of either the Architect Board, her public employer, or NECARB, her private employer. She further informs that the Architect Board has the sole authority to decide whether or not to belong to NECARB. Given the above representations, the Petitioner seeks advice as to whether her private, part-time employment as the Executive Administrator of NECARB is prohibited by the Code of Ethics. The Code of Ethics provides that no public official or employee shall have an interest or engage in any business, employment, transaction or professional activity which is in substantial conflict with the proper discharge of her duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). More specifically, the Code prohibits a public official or employee from accepting other employment that would impair her independence of judgment as to her official duties or require or induce her to disclose confidential information acquired by her in the course of her official duties. Section 36-14-5(b). Additionally, the Code prohibits a public official from using her public office or confidential information received through her public office to obtain financial gain for herself, a family member, business associate, or any person by which she is employed or whom she represents. Section 36-14-5(d). Provided that the above Code provisions concerning conflicts of interest, use of confidential information and maintaining independence of judgment are satisfied, the Code does not preclude a public employee from engaging in outside or secondary private employment. For example, in Advisory Opinion 2006-58, the Commission opined that the Deputy Chief Legal Counsel employed by the Rhode Island Department of Health, Division of Legal Services could be hired by the Federation of State Medical Boards to serve as the Northeast Region attorney for a physician license verification project, provided that he completed the work on his own time, without the use of public resources, and the nature of his work would not require him to appear before his own agency. See also A.O. 2005-48 (opining that the Executive Director of the Rhode Island Underground Storage Tank Financial Responsibility Fund Review Board could accept membership on the Board of Directors of the National Leaking Underground Storage Tank (“NatLUST”) program, given that Rhode Island did not participate in NatLUST and she would perform her NatLUST duties on her own time and without any public resources). In the present matter, the Petitioner is employed as the sole administrator of the state’s Architect Board, performing all of the administrative tasks necessary to the operations of that public body. The Petitioner is also privately employed as the Executive Administrator for NECARB, the regional conference of NCARB to which the six (6) New England architectural registration boards are members. While her public employer pays membership dues to her private employer, she has no decision-making authority relative to the payment of dues by the Architect Board or the setting of fees by NECARB. Rather, the Petitioner, in both her public and private capacities, is performing the administrative tasks delegated to her by the boards for which she is employed. She represents that her official duties at the Architect Board do not conflict with her private employment for NECARB. Furthermore, there is no indication that her private employment would have any intersection with her public employment beyond the fact that it is beneficial for the Architect Board to employ an administrator with such a comprehensive understanding of the Model Rules and public policy initiatives set forth by NCARB, a national organization whose membership consists of all of the architectural registration boards in the United States. For all of these reasons and relying upon the Petitioner’s representations, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from working, on her own time, as the Executive Administrator for the New England Conference of the National Council of Architectural Registration Boards. Code Citations: § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) Related Advisory Opinions: A.O. 2006-58 A.O. 2005-48 Keywords: Private Employment This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. [1] NCARB is a private, non-profit corporation. NCARB’s membership consists of the architectural registration boards of the fifty (50) states, the District of Columbia, and three (3) U.S. territories (Guam, Puerto Rico, and the U.S. Virgin Islands). See www.ncarb.org. The Petitioner informs that each jurisdiction pays membership dues to NCARB. [2] NECARB’s other member states are Connecticut, Maine, Massachusetts, New Hampshire, and Vermont.