Advisory Opinion No. 2004-24

Re: Timothy A. Hawthorne

QUESTION PRESENTED

The petitioner, a member of the City of Cranston Fire Department, a municipal employee position, and an Assistant Deputy State Fire Marshal, a state appointed position, requests an advisory opinion regarding whether he may provide private consulting services relating to fire safety and code compliance outside the City of Cranston.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner from working privately as a fire safety and code compliance consultant provided he perform such services on his own time and outside the City of Cranston.

The petitioner is a Cranston firefighter and an Assistant Deputy State Fire Marshal. The petitioner informs that his authority as a Deputy State Fire Marshal is limited to the City of Cranston. The petitioner represents that his duties as an Assistant Deputy Fire Marshal include arson investigation, inspection of buildings and commercial plan review.

The petitioner plans to establish a private consulting business relating to fire safety and code compliance. The petitioner informs that his private consulting business will offer third party review of construction plans prior to their submittal to the local fire safety authority (i.e., one of the State Fire Marshal’s appointed deputies). The petitioner also plans to provide onsite inspections of existing properties. The petitioner represents that he will not perform private consulting services within the City of Cranston or during the course of his public employment. Additionally, the petitioner advises that the State Fire Marshal is aware of his request and supports the petitioner’s proposed consulting activities.

The Fire Safety Code Board of Appeal and Review (the Board), an entity separate and distinct from the Office of the State Fire Marshal, provides appellate review of decisions issued by the State Fire Marshal. The petitioner is neither a member of the Board, nor an employee thereof. However, on occasion he does appear before the Board in his public capacity as an agent of the State Fire Marshal. So as to avoid the appearance of impropriety, the petitioner represents that he will not appear before the Board in his capacity as a private consultant.

Under the Code of Ethics, the petitioner may not engage in any private business or professional activity that is in substantial conflict with the proper discharge of his duties and employment as a public official. See R.I. Gen. Laws § 36-14-5(a). “Substantial conflict” is defined as a “direct monetary gain” or a “direct monetary loss” that accrues, by virtue of the public official’s activity, to himself, a family member, a business associate, an employer, or any business that the public official represents. See R.I. Gen. Laws § 36-14-7(a). The Code provides that the petitioner shall not accept other employment that will either impair his independence of judgment as to his official duties or induce him to disclose confidential information acquired by him in the course of his official duties. See R.I. Gen. Laws § 36-14-5(b). Additionally, the Code provides that a public official or employee may not use his office to obtain financial gain other than as provided by law. See R.I. Gen. Laws § 36-14-5(d).

In past advisory opinions, the Commission has allowed public officials to accept outside employment provided that (a) the official’s duties for their agency do not directly relate to their private employment; (b) he or she completes the work before or after normal working hours; and (c) the official does not appear before their own agency. See, e.g., A.O. 2001-11 (opining that an industrial hygienist employed by the Department of Health may be simultaneously employed as a private consultant in the areas of asbestos, lead paint, occupational safety and indoor air quality provided that she not appear in her private capacity before her current division within DOH); A.O. 2000-76 (opining that a wetlands scientist employed by the Department of Environmental Management could be simultane ously employed as a wetlands scientist in the private sector provided he not appear in his private capacity before his current division within DEM); A.O. 98-135 (opining that a manager of the Scituate Reservoir employed by the Providence Forest Management Program could be simultaneously employed as a private consultant to landowners provided that such landowners do not own property within the Scituate Reservoir watershed).

In the instant matter, the petitioner represents that he will not perform any private consulting services within the City of Cranston or during the course of his public employment. Consequently, the petitioner will not be acting in matters in his private capacity where he exercises authority in his public capacity. Based upon the petitioner’s representations, the petitioner’s private consulting activities will not be in substantial conflict with his public duties as a Cranston firefighter and Assistant Deputy State Fire Marshal. However, the petitioner is cautioned not to use his public positions or confidential information obtained therefrom for the benefit of his private clients.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

2003-43

2003-21

2001-11

2000-76

98-137

98-135

97-50

Keywords:

Financial Interest

Private Employment