Advisory Opinion No. 2014-11 Rhode Island Ethics Commission Advisory Opinion No. 2014-11 Approved: April 29, 2014 Re: Jason I. Simmons QUESTION PRESENTED: The Petitioner, a securities examiner in the Division of Securities Regulation at the Rhode Island Department of Business Regulation, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from engaging in private employment, on his own time, as a real estate salesperson. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a securities examiner in the Division of Securities Regulation at the Rhode Island Department of Business Regulation, a state employee position, is not prohibited by the Code of Ethics from engaging in private employment, on his own time, as a real estate salesperson. The Petitioner is a securities examiner at the Rhode Island Department of Business Regulation (“DBR”), Division of Securities Regulation. He represents that the Division of Securities Regulation enforces compliance with the applicable state laws and regulations related to the securities industry, franchises, charities, fund-raisers and time-shares. He states that his duties involve examining and writing reports on: whether certain securities may legally be offered for sale; the registrations of broker-dealers and investment advisors; and the registration statements of charitable organizations and professional fund raisers. Prior to his employment with DBR, which commenced in February 2014, the Petitioner became a licensed real estate salesperson in the state of Rhode Island.[1] He informs that he passed the written examination, paid an examination fee and a licensing fee, and completed forty-five (45) hours of instruction in real estate. See R.I. Gen. Laws § 5-20.5-4. He informs that his license must be renewed upon the payment of the renewal fee by May 1 of each even numbered year. He further states that his license renewal also requires proof of the completion of twenty-four (24) hours of continuing education courses in the preceding two (2) years. The Petitioner represents that the Division of Commercial Licensing & Racing & Athletics (“Division of Commercial Licensing”) at DBR is responsible for the licensing of real estate brokers and salespersons. He states that his work in the Division of Securities Regulation is separate and distinct from the Division of Commercial Licensing. He further states that his responsibilities as a securities examiner are unrelated to real estate licensing and he has no involvement in the licensure of real estate salespersons. The Petitioner states that he would engage in real estate work on his own time, after state work hours, on nights and weekends, and without the use of any DBR resources or equipment. He represents that he will not use any confidential information obtained while working at DBR for his real estate work. He further states that he will not solicit clients for his real estate work during state work hours and will not solicit any person who has an interest in his public duties as a securities examiner. 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 his 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 his independence of judgment as to his official duties or require or induce him to disclose confidential information acquired by him in the course of his official duties. Section 36-14-5(b). Additionally, the Code prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, a family member, business associate, or any person by which he is employed or whom he 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. See e.g. A.O. 2013-35 (opining that the Chief of the Rhode Island Bureau of Audits (“BOA”) was not prohibited from engaging in self-employment on her own time, as an income tax preparer, notwithstanding that the BOA’s Deputy Chief was supervising an audit of the Division of Taxation, given that the petitioner’s supervision was not required and she removed herself from any involvement); A.O. 2011-20 (opining that a senior planner at the Rhode Island Department of Administration, Division of Planning, was not prohibited by the Code of Ethics from working in his private capacity as a realtor, provided that all such work was performed on his own time and without the use of public resources or confidential information obtained as part of his state employment); A.O. 2005-44 (opining that a Housing Officer for the City of Warwick’s Office of Housing and Community Development could sell and make real estate referrals in the City, provided that he did so in his private capacity and did not use public resources or confidential information obtained as part of his employment with the City). See also A.O. 2014-6; A.O. 2012-32; A.O. 2011-41; A.O. 2007-34; A.O. 2006-20. In the present matter, the Petitioner represents that he will perform all real estate work outside of his public office, on his own time, and without the use of any DBR resources or equipment. He states that he will not use any confidential information acquired through his public employment to benefit himself or his clients. He further represents that he will not solicit clients for his real estate work during state work hours and will not solicit any person who has an interest in his public duties as a securities examiner. Although the Petitioner’s real estate license is regulated and processed by DBR, it is done through a separate division in which he represents that he has no involvement. Furthermore, the real estate licensing process is based on objective standards of timely renewal applications, payment of fees and proof of completing the necessary education requirements. Based upon these representations, we do not perceive any danger that the Petitioner’s independence of judgment would be impaired as to his official duties in the Division of Securities Regulation at DBR. For all of these reasons it is the opinion of the Ethics Commission that the Petitioner, a securities examiner in the Division of Securities Regulation at DBR, is not prohibited by the Code of Ethics from engaging in private employment, on his own time, as a real estate salesperson. The Petitioner is advised that if his official duties at DBR change and he has any involvement in real estate licensure, he should seek further advice from the Ethics Commission or cease his private employment in real estate sales. 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, policy, rule or canon of professional ethics may have on this situation. Code Citations: § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) Related Advisory Opinions: A.O. 2014-6 A.O. 2013-35 A.O. 2012-32 A.O. 2011-41 A.O. 2011-20 A.O. 2007-34 A.O. 2006-20 A.O. 2005-44 Keywords: Private Employment