Advisory Opinion No. 2004-34

Re: Donna M. Cone, Ph.D.

QUESTION PRESENTED:

The petitioner, a Coordinator of Community Planning and Development for the Rhode Island Department of Elderly Affairs, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits her private employment as the Executive Director of the New England Gerontology Academy.

REPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Coordinator of Community Planning and Development for the Rhode Island Department of Elderly Affairs, a state employee position, is not prohibited by the Code of Ethics from continuing her private employment as the Executive Director of the New England Gerontology Academy.

The petitioner is employed by the Rhode Island Department of Elderly Affairs (RIDEA) as a Coordinator of Community Planning and Development. This position requires a 35-hour work week, Monday through Friday from 8:30 a.m. to 4:00 p.m. Her duties are broad and varied, reporting directly to the Director of RIDEA on issues ranging from policy, planning, evaluation, regulatory and certification issues.

Aside from her public position at RIDEA, in her private capacity the petitioner is employed by the New England Gerontology Academy (NEGA) as its Executive Director. This is a part-time position, consisting of 20 hours per week after 4:00 p.m. on weekdays, and during the day on weekends. The petitioner asserts that NEGA is a private, not-for-profit organization incorporated in Rhode Island with a mission of improving the quality of care provided to the elderly and others with complex clinical needs. NEGA pursues this mission by developing and delivering training to care providers.

The petitioner represents that NEGA is entirely independent of RIDEA, that it receives no funding from, nor does it contract with, RIDEA. Further, the petitioner states that while she is the NEGA’s Executive Director, NEGA will not seek or accept any funding or contract with RIDEA. According to the petitioner, occasionally NEGA may place a student in an unpaid internship at an adult day program that is licensed by RIDEA. Furthermore, the petitioner recalls one instance where an employee of a RIDEA licensed, adult day program attended a NEGA Certified Nursing Assistant Training Program at a cost of approximately $500. According to the petitioner, this is the extent of the interaction between RIDEA and NEGA.

Under the Code of Ethics, a public employee may not accept other employment which would impair her independence of judgment or require her to disclose confidential information acquired in the course of her official duties. See R.I. Gen. Laws § 36-14-5(b). Additionally, the Code of Ethics prohibits a public employee from using her public position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself, a family member, a business associate or employer. See R.I. Gen. Laws § 36-14-5(d). Pursuant to R.I. Gen. Laws § 36-14-5(a), a public employee may not participate in any matter in which she has an interest that is in substantial conflict with the proper discharge of her duties or employment in the public interest. A substantial conflict of interest occurs if she has reason to believe or expect that she or any family member or business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. See R.I. Gen. Laws § 36-14-7(a).

The aforementioned provisions of the Code of Ethics do not create an absolute bar to simultaneous service as an employee of the RIDEA and the Executive Director of NEGA. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out an employee’s duties in the public interest. Initially, there is no indication that the petitioner is using her public time or equipment to further her private employment. In that regard, the petitioner is advised that she must not perform any work for NEGA during her public work hours, nor may she utilize any RIDEA supplies or equipment for her private employment. Given that the petitioner's RIDEA duties and her NEGA duties are separate and distinct, absent some other relationship, or unless some issue came before one of the forums in which the petitioner serves that directly impacted the other, no conflicts of interest under the Code of Ethics appear to be present.

Accordingly, the petitioner is not prohibited by the Code of Ethics from continuing her private employment as the Executive Director of NEGA. The petitioner is advised that this opinion solely addresses whether the Code of Ethics prohibits her from simultaneously holding these two positions. This opinion does not, and cannot, address whether any other statutes, rulings or RIDEA policies prohibit such simultaneous service.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-7(a)

Keywords:

Private employment