Advisory Opinion No. 2009-17 Rhode Island Ethics Commission Advisory Opinion No. 2009-17 Re: Patricia A. Coyne-Fague QUESTION PRESENTED The Petitioner, Chief Legal Counsel to the Rhode Island Department of Corrections, a state employee position, requests an advisory opinion as to whether she may simultaneously serve as a bail commissioner without running afoul of the Code of Ethics. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Chief Legal Counsel to the Rhode Island Department of Corrections, a state employee position, may simultaneously serve as a bail commissioner without running afoul of the Code of Ethics, provided that: (1) her official duties do not directly relate to her private employment; (2) she completes such work outside of her normal working hours; and (3) she does not appear before her own agency. The Petitioner is employed as Chief Legal Counsel to the Rhode Island Department of Corrections (“Department”). She advises that she is responsible for the following: defending the Department and its officials in lawsuits filed against it/them; the development of policy; drafting and managing the Department’s legislative package in coordination with the Office of the Governor; and defending the Department in labor and employment actions, such as arbitrations and unemployment compensation hearings. In addition, the Petitioner informs that she manages a staff of three other attorneys who also represent the Department. The Petitioner advises that she is interested in seeking appointment as a bail commissioner. She states that bail commissioners are appointed by the Chief Judge of the Rhode Island District Court and are authorized to set and take bail in all complaints bailable, as well as sign arrest warrants involving District Court matters. The Petitioner informs that in cases where an accused cannot be admitted to bail, the bail commissioner commits the accused to the Adult Correctional Institutions. She further informs that bail commissioners may schedule pre-trial dates and/or felony screening dates. The Petitioner represents that bail commissioners perform their duties outside of the hours in which courts are open and, therefore, any work that she may perform as a bail commissioner would be outside of her normal working hours. In addition, the Petitioner represents that bail commissioners are paid for their services by the accused who requests their services and that the fee amounts are prescribed by statute. The Petitioner represents that neither she nor the Department has any role in the prosecutorial process within the criminal justice system. Rather, she explains, the Department’s role in the criminal justice system begins after an accused has been ordered detained or sentenced by the court and the Department takes no position as to whether a person should be admitted to bail or sentenced to incarceration. The Petitioner further represents the her position as Chief Legal Counsel for the Department would not afford her any sort of “edge” in work performed as a bail commissioner; nor would the work she performs as a bail commissioner provide her with any sort of “inside” information which could be useful in her public employment as Chief Legal Counsel to the Department. Finally, the Petitioner represents that because the functions of a bail commissioner do not intersect with the functions of legal counsel to the Department, her independence of judgment as to her representation of the Department will not be impaired; nor will she be induced to disclose confidential information acquired as Chief Legal Counsel while performing the duties of a bail commissioner. Under the Code of Ethics, a public employee may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). A public employee will have an interest in substantial conflict with her official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of her activity, to herself, a family member, a business associate, or any business by which she is employed or which she represents. See R.I. Gen. Laws § 36-14-7(a). A public employee may not accept other employment that will either impair her independence of judgment as to her official duties or employment, or that would require her to disclose confidential information acquired in the course of her official duties. See R.I. Gen. Laws § 36-14-5(b). The Code also provides that a public employee may not use her office or position to obtain financial gain for herself, a family member, a business associate, an employer, or any business that she represents. See R.I. Gen. Laws § 36-14-5(d). Sections 5(a) and (d) of the Code do not create an absolute bar to simultaneous service as Chief Legal Counsel and a bail commissioner. Rather, a matter by matter evaluation and determination must be made as to whether substantial conflicts of interest exist with respect to carrying out the Petitioner's duties in the public interest. Here, the Commission concludes that simultaneous service in both positions would not present an inherent conflict of interest under the Code of Ethics. It is unlikely that the Petitioner’s duties as a bail commissioner would impact her responsibilities as an attorney employed by the Department of Corrections and vice versa, given the different spheres of responsibilities that fall to those respective positions. Absent some direct financial nexus between the Petitioner’s two public roles, no inherent conflict of interest would preclude such simultaneous service. While there is similarly no evidence of a violation of the Code's section 5(b), which prohibits the acceptance of other employment which will either impair independence of judgment or induce disclosure of confidential information, the Petitioner is cautioned to remain mindful of this provision when she serves in each of her public roles. If any particular matter pending before either public body presents such a conflict, she should seek further advice from the Commission or recuse in accordance with R.I. Gen. Laws § 36-14-6. In the past, the Commission has given its approval to public employees to accept outside employment provided that: (1) the public employee’s official duties did not directly relate to his or her private employment; (2) the public employee completed such work outside of his or her normal working hours; and (3) the public employee did not appear before his or her own agency. See A.O. 2007-22 (opining that an attorney employed by the Rhode Island Department of Labor & Training could accept part-time employment as a prosecutor for the North Providence Municipal Court, provided that all such municipal work is performed on her own time and without the use of state resources). Accordingly, the Commission opines that the Petitioner, Chief Legal Counsel to the Rhode Island Department of Corrections, may simultaneously serve as a bail commissioner without running afoul of the Code of Ethics, provided that: (1) her official duties do not directly relate to her private employment; (2) she complete such work outside of her normal working hours; and (3) she does not appear before her own agency. The Petitioner is advised that this opinion solely addresses the application of the Code of Ethics and whether the Code prohibits her from simultaneously holding these public positions. This opinion does not, and cannot, address whether any policies or rules, such as the Rules of Professional Conduct or Department of Corrections Personnel Rules, prohibit such simultaneous service. Code Citations : 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-6 36-14-7(a) Related Advisory Opinion : 2007-22 2003-37 Keywords : Dual Public Roles