Rhode Island Ethics Commission

 

 

Advisory Opinion No. 2016-16

 

Approved:  April 26, 2016

 

Re:  Leslie MacDougall

 

QUESTION PRESENTED:

 

The Petitioner, an Environmental Health Food Specialist for the Rhode Island Department of Health, Office of Food Protection, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from working, on her own time and in her private capacity, as a food safety consultant for food establishments in Connecticut and/or Massachusetts. 

 

RESPONSE:

 

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, an Environmental Health Food Specialist for the Rhode Island Department of Health, Office of Food Protection, a state employee position, is not prohibited by the Code of Ethics from working, on her own time and in her private capacity, as a food safety consultant for food establishments in Connecticut and/or Massachusetts, provided that: she does not perform such work for establishments that operate within the State of Rhode Island; she performs such work on her own time and without the use of public resources or equipment; she does not use her public employment to recruit or obtain potential clients; and she declines to accept any private consulting work for any food establishments in Massachusetts and/or Connecticut owned by the same person(s) who own a food establishment within her assigned region of public employment in Rhode Island.

 

The Petitioner is an Environmental Health Food Specialist for the Rhode Island Department of Health (“DOH”), Office of Food Protection and has been employed as such since June 2014.  She states that she works full-time Monday through Friday from 8:30 a.m. to 4:00 p.m., and occasionally after hours and on weekends.  She explains that her duties as an Environmental Health Food Specialist involve inspecting restaurants, schools, hospitals, and food vendors at special events to ensure that the food provided at these establishments is prepared and stored in a safe manner.  The Petitioner informs that, currently, there are 20 inspectors in her office who are assigned to different regions in the state.  She explains that an inspector’s assigned region may change, but it cannot extend outside of the boundaries of Rhode Island.  The Petitioner represents that she is currently assigned to perform inspections in Smithfield, North Smithfield, Woonsocket, and parts of Providence. 

 

In her private capacity, the Petitioner represents that she would like to engage in food safety consulting for food establishments in Connecticut and/or Massachusetts.  She explains that she would conduct her consulting services with her own resources including all office supplies, personal computer and internet access, her own cell phone, and her own vehicle.  Further, she states that her private work would occur in the evenings, after state work hours, and on weekends.  In the event that the Petitioner would need to provide private consulting services during her normal working hours, she represents that she would request to discharge her personal and/or vacation time to do so.

 

The Petitioner seeks guidance as to whether her work as a private, food safety consultant for food establishments in Connecticut and/or Massachusetts is prohibited by the Code of Ethics, given her employment at the DOH, Office of Food Protection. 

 

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

 

The Commission has issued a number of analogous advisory opinions in which it has given approval for employees to accept outside or secondary employment, subject to certain restrictions.  For example, in Advisory Opinion 2015-36, the Commission opined that an Assistant Medical Examiner for the State of Rhode Island was not prohibited by the Code of Ethics from working as a private consultant medical examiner and/or expert witness on cases outside of Rhode Island, provided that she performed all private consulting work on her own time and without the use of state resources or equipment, and that she did not work on cases that: (1) were subject to the jurisdiction of any state or federal court in Rhode Island; or (2) involved decedents who were residents of Rhode Island at the time of their death, or in which Rhode Island residents were parties to the lawsuit or criminal complaint.  See also A.O. 2011-41 (opining that the Clinical Director (Psychologist) for the Rhode Island Department of Corrections was not prohibited by the Code of Ethics from continuing to provide consulting services, in his private capacity, to another state agency as an independent contractor, 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 public employment); A.O. 2007-34 (opining that a supervising planner for the Rhode Island Water Resources Board could, on her own time and in her private capacity, engage in the sale of recycled food barrels and retrofitted rain barrels given her representations that she would not solicit clients with an interest in her public duties, she would not use any public resources and would complete the activities outside of her work hours); A.O. 2004-24 (opining that a member of the City of Cranston Fire Department and Assistant Deputy State Fire Marshal was not prohibited by the Code of Ethics from providing consulting services relating to fire safety and code compliance on his own time and outside of Cranston); and A.O. 2000-93 (opining that investigative employees of the Department of Labor and Training could accept or maintain private employment in the professional fields for which they had investigative, licensing and enforcement responsibilities provided that: (1) they did not perform such work within the State of Rhode Island; (2) they performed such work on their own time and without the use of public resources; and (3) they did not use their state positions to recruit potential clients). 

 

In the present matter, the Petitioner would like to perform private, food safety consulting for food

establishments located in Connecticut and/or Massachusetts.  The Petitioner informs that, prior to requesting this advisory opinion, she discussed her private employment with her immediate supervisor and the Chief of the Office of Food Protection, neither of whom foresees any conflict of interest nor objects.  She explains that, because her public employment is limited to regions within this state and her private consulting work would occur outside of the state, it is unlikely that she would be performing consulting services in her private capacity where she performs inspections in her public capacity.  As a result, the facts represented above do not indicate that the Petitioner’s private employment would be in substantial conflict with her duties in the public interest nor impair her independence of judgment as to her public duties.  However, she explains that should she encounter an unforeseeable conflict with her private consulting work, she would recuse and request that her DOH supervisor reassign the conflicted establishment to another inspector in her office.  Additionally, the Petitioner represents that, if she were offered private consulting work as a result of her public employment, i.e., an owner of a food establishment within her assigned region offered her private work at another food establishment that he/she owned in Massachusetts or Connecticut, she would decline to accept the private consulting work.

                                                                                                               

Accordingly, based on the Petitioner’s above representations, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from working privately as a food safety consultant for food establishments located in Connecticut and/or Massachusetts, provided that: all work is performed on her own time; she does not use public resources or equipment; her consulting services are performed outside of the State of Rhode Island; she does not use her public employment to recruit or obtain potential clients; and she declines to accept any private consulting work for any food establishments in Massachusetts and/or Connecticut owned by the same persons(s) who own a food establishment within her assigned region of public employment in Rhode Island.

 

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, Department of Health policy, 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. 2015-36

A.O. 2011-41

A.O. 2007-34

A.O. 2004-24

A.O. 2000-93

 

Keywords:

Private Employment