Advisory Opinion No. 2000-6

Application Of The Code Of Ethics To Outside Employment When
The Employer Declines To Disclose The Terms Of The Employment
Contact To The State Ethics Commission

Rachel S. Rubin, Managing Director of the State Ethics Commission has posed the following hypothetical question:

A private entity wishes to retain a state employee as a consultant. Due to concerns regarding the release of proprietary business information, the entity has declined to provide the State Ethics Commission with a copy of the proposed consultant contract. Both the private entity and the state employee have assured the Commission, however, that no conflict of interest is engendered by the proposed employment agreement and no Code provision is in anyway breached.

The State Ethics Commission recognizes the legitimate concerns a private company may have regarding the disclosure of proprietary information. Furthermore, the Commission appreciates the assurances given by both parties, and in no way questions their sincerity or integrity. Nonetheless, under the circumstances, the Commission cannot sanction the outside employment in question.

In essence, the State Ethics Commission has grounded its administration and enforcement of the Ethics Code on the fundamental tenet that public service is a public trust. Operating from this premise, the Commission has consistently ruled that one’s public service takes precedence over outside endeavors; and, consequently, such activities are only permissible to the extent they do not conflict with one’s state duties. In applying this criterion over the past twenty-one years, the State Ethics Commission has, without exception, required that a public official or state employee seeking to engage in outside employment provide the Commission with the necessary information to determine whether or not the proposed work will violate any provision of the Ethics Code.

Absent this information, the Commission cannot fulfill its statutory mandate to insure that the activity at issue is not inconsistent with the requirements of the Ethics Code. Therefore, the Commission has no alternative but to disallow outside employment of a state servant, when the employing entity refuses to disclose the terms of the agreement to the Commission.

By order of the Commission,

Stanley Burdick,
Chairperson