Private employment can cause conflicts of interest in some circumstances. The following are considerations for the public official or employee contemplating a second job. A short article about recent Commission desisions is also included.
Things to Consider
Do’s and Don’ts
Ethics Commission advisory opinions issued over the past few years offer important guidance on taking a second job. A key consideration in determining whether a conflict is present under the Code of Ethics is whether the private employment overlaps with or is directly comparable to the official responsibilities of the government employee or official.
In 1995, the Commission considered whether it was legally permissible for deputy sheriffs to serve legal process on their own time as, in effect, private constables. Deputy sheriffs serve process, such as writs and summonses, as part of their official duties. Both private constables and sheriffs charge a fee to private entities for the service of process. Private constables compete directly with deputy sheriffs for business. The less efficient and effective deputy sheriffs are in carrying out their public “service of process” duties, the more potential work exists for the private sector. The Commission concluded that head-to-head competition between public and private employment created both real and potential conflicts of interest. Additionally, the deputies would be in a position to enjoy an unfair advantage soliciting private employment opportunities given the information available to them and their access to potential clients. The Commission concluded that maintaining private employment that had the potential to impact directly an employee’s public duties created a conflict of interest. In the same ruling, the Commission concluded that state employees, in general, could serve process in their private employment so long as they were not employed by a public agency responsible for service of process. See Declaratory Ruling 95-2.
Similarly, the Commission, in Advisory Opinion 96-47, found that a member of the Board of Examiners of Electricians should not teach continuing education classes mandated for electricians and journeymen in the State given that the same board also established the continuing education program and provided advice and recommendations on licensing. However, the Commission further held that by teaching the class pro bono the Board of Examiners member would avoid any conflicts since he would not be benefiting from a requirement that he established and administers in his public capacity.
Obviously, not all employment creates a conflict of interest. For example, a police officer may have a business that deals with repeated animal nuisance problems since his ordinary duties do not include handling nuisance animals, A.O. 97-39. And, a Rhode Island Housing and Mortgage and Finance Corporation (“RIHMFC”) Board member may also work as a consultant on a real estate project because the project received no funding from RIHMFC, and RIHMFC’s participation was limited to an annual inspection of the property, A.O. 92-23. Also, City and Town clerks, whose official duties include the ministerial functions of issuing and filing marriage licenses, may perform marriages for a fee outside of normal working hours provided that they do not in any way improperly use information obtained in the course of their government employment, A.O. 94-16. Countless other situations exist where no potential exists for the public responsibilities of one job to intersect too closely with the duties of one’s outside, private employment.
Occasionally other issues come into play that might either prohibit the outside employment or limit how it is conducted: for example, whether the agency that employs the petitioner also funds or contracts with his/her private employer; whether there are opportunities to refer clients or services to his/her private employer; and whether the employee has special access to information amounting to “the use of office for financial gain.”
Recently, the Commission ruled that a Superior Court Clerk could accept other employment that entailed retrieving court documents for a document retrieval company provided she did not receive any special access to that information. For instance, if the Clerk’s office is open to the public from 8:30 a.m. to 5 p.m., the employee could not retrieve that information outside those normal working hours since the public (or another document retrieval company) would not have similar access to the information during those “off hours.” The Commission based its decision on Section 5(d) of the Code which prohibits using one’s public office for personal financial gain. Here, the financial gain is the salary the employee is earning from the private employer. Additionally, the Commission concluded that the court employee had to do the work for her private employer on her own time and that she should not use her public employment position to access private or confidential information for her private employer. In short, while on the clock for her public duties, the court employee may not retrieve documents for her private employer. See A.O. 97-98. Reprint from Ethics Today, Vol III, No. 1 (Fall 1997)