Advisory Opinion No. 2014-20 Rhode Island Ethics Commission Advisory Opinion No. 2014-20 Approved: June 17, 2014 Re: Thomas R. O’Loughlin QUESTION PRESENTED: The Petitioner, the Director of Public Works for the Town of Middletown, a municipal employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from preparing residential architectural plans and site plans, on his own time, for his friends who wish to renovate their private residences in Middletown. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Director of Public Works for the Town of Middletown, a municipal employee position, is not prohibited by the Code of Ethics from preparing residential architectural plans and site plans, on his own time, for his friends who wish to renovate their private residences in Middletown. The Petitioner is the Director of Public Works for the Town of Middletown (“Town”). He represents that the Director of Public Works is appointed by the Town Administrator and is responsible for the management of the Department of Public Works (“DPW”). He states that the DPW is responsible for the operation and maintenance of the public systems including the sanitary sewer system, the roads and drainage systems, the beach and recreational facilities, and the refuse and recycling program. The Petitioner represents that two of his friends, who are also residents of Middletown, have asked him to prepare residential architectural plans and site plans for renovations to their private residences. He states that he has been a designer of residential buildings for over thirty (30) years. He informs that his educational background is in engineering and a license in architecture is not required to submit these types of plans. He represents that he generally does not accept design work for properties located in Middletown due to his status as a Middletown employee. In this case, however, his friends have asked him for help and he states that he would provide his design services free of charge. He informs that the architectural plans and site plans would be presented, by each respective property owner, to the Building Official and the Middletown Zoning Board of Review (“Zoning Board”) for review and approval subject to zoning laws and building codes. The Petitioner represents that the DPW is separate and distinct from the Building and Zoning Department. He states that he has no authority or involvement with the administration of the Building and Zoning Department. He advises that the Building Official is appointed by the Town Administrator and the Zoning Board members are appointed by the Middletown Town Council. The Petitioner represents that he would perform these design services on his own time, outside of Town work hours and without the use of any Town resources or equipment. He states that his name will not appear on any of the design plans that he prepares for his friends. He further informs that he will not represent his friends before the Building Official or the Zoning Board. He states that he maintains a personal computer system and separate mobile phone that he uses for his private design clients. Given the above representations, the Petitioner seeks guidance as to whether he may prepare residential design plans that will be submitted to the Town’s Building Official and Zoning Board. Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that 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). A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). 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, his family, his business associate, or any person by which he is employed or whom he represents. Section 36-14-5(d). Finally, the Code of Ethics provides that a public official shall not accept 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). The Commission considered a similar fact pattern in Advisory Opinion 2013-24, where a Providence Assistant City Solicitor, who served as legal counsel to the Providence School Board, asked if he and other members of his law firm could represent private clients before the Providence City Council, Zoning Board, Planning Board, Probate Court, Municipal Court, Board of Tax Appeal or any other City board, court, commission or entity. There, the Petitioner represented that his duties as Assistant City Solicitor were limited to the representation of the School Board and he did not have any official duties related to any other City board or entity. The Commission concluded that the petitioner’s private legal work was not in substantial conflict with his duties as Assistant City Solicitor and there was no reason to believe that his private legal work before other City boards would impair his independence of judgment. Thus, the Commission opined that the petitioner and other members of his law firm could represent clients before other Providence boards, courts, commissions or entities before which the petitioner did not represent the City as Assistant City Solicitor, and over which he exercised no authority or control. See also A.O. 2011-13 (opining that the Coventry Town Solicitor could represent clients in his private capacity before the Coventry School Department in Special Education Hearings, given that the School Department did not utilize the Town Solicitor’s office for legal assistance and had retained its own independent legal counsel). Additionally, in Advisory Opinion 2009-17, the Commission opined that the Chief Legal Counsel to the Rhode Island Department of Corrections (“DOC”), could simultaneously serve as a bail commissioner/justice of the peace, provided that: 1) her official duties did not relate to her private employment; 2) she completed such work outside of her normal working hours; and 3) she did not appear before her own agency, the DOC. In contrast, in Advisory Opinion 2007-1, the Commission opined that the Code of Ethics prohibited the Pawtucket Deputy Tax Assessor from performing real estate appraisals in the City of Pawtucket for lending and refinancing purposes, notwithstanding that his official duties did not involve real estate assessments in the City. The significant factors there were that the petitioner’s official duties included supervising those who participated in the assessment of real estate, he had special access to resources that could assist him in his private endeavors, and the fact that nothing would prevent a property owner from using an appraisal rendered by the petitioner for tax appeal purposes. In the present matter, as the Director of the DPW the Petitioner represents that he has no authority over or any official involvement with the Town’s Building Official or the Zoning Board. He states that he generally does not perform design work for clients located in Middletown given his status as a Middletown employee. However, he states that his friends have asked him to prepare residential design plans and site plans, which he would provide to his friends for free. He states that he will perform the design work on his own time, outside of Town work hours, and without the use of any Town equipment or resources. He informs that he will not represent his friends before the Building Official or the Zoning Board. He further states that his name will not appear of the design plans that he prepares for his friends. Finally, he represents that he maintains a personal computer system and mobile phone for his private design work. Based on the above representations, we find that the Petitioner’s private design work is not in substantial conflict with his duties as the Director of the DPW. Furthermore, there is no reason to believe that the Petitioner’s private employment would impair his independence of judgment as to his official duties as the Director of DPW because the jurisdictions of each Town department are separate and distinct. For all of these reasons and relying on the Petitioner’s representations, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from preparing residential architectural plans and site plan, on his own time, for his friends who wish to renovate their private residences in Middletown. 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, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations: § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-7(a) Related Advisory Opinions: A.O. 2013-24 A.O. 2011-13 A.O. 2009-17 A.O. 2007-1 G.C.A. 2009-4 Keywords: Private Employment