Advisory Opinion 2016-1 Rhode Island Ethics Commission Advisory Opinion No. 2016-1 Approved: January 12, 2016 Re: Timothy A. Williamson, Esq. QUESTION PRESENTED: The Petitioner, a part-time attorney for the Judiciary Committee of the Rhode Island House of Representatives, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from seeking and, if nominated, accepting an appointment to serve as an Associate Judge of the Rhode Island District Court. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a part-time attorney for the Judiciary Committee of the Rhode Island House of Representatives, a state employee position, is not prohibited by the Code of Ethics from seeking and, if nominated, accepting an appointment to serve as an Associate Judge of the Rhode Island District Court. In his private capacity, the Petitioner is a practicing attorney and partner with the law firm of Inman, Tourgee & Williamson. He previously served as an elected member of the Rhode Island House of Representatives from 1993 through 2010.[1] Since January of 2014, in addition to his private law practice, the Petitioner has been employed by the Rhode Island General Assembly’s Joint Committee on Legislative Services (“JCLS”)[2] as a part-time committee attorney for the Judiciary Committee of the House of Representatives. The Petitioner has applied to the Rhode Island Judicial Nominating Commission (“JNC”) [3] to fill a judicial vacancy on the Rhode Island District Court (“District Court”). In March and June of 2015, the JNC received public comment and interviewed several candidates, including the Petitioner, for the District Court vacancy. On June 16, 2015, the JNC voted to recommend five (5) candidates, including the Petitioner, to the Governor for her consideration. As of the issuance of this advisory opinion the Governor has not selected her nominee. In November 2015, it was reported in the media that a citizens’ advocacy organization questioned whether a revolving door provision of the Code of Ethics prohibited the Petitioner from seeking or accepting a position in the judiciary given his ongoing employment as an attorney for the General Assembly.[4] Thereafter, the Petitioner requested the instant advisory opinion seeking clarification as to whether the Code of Ethics prohibits his ongoing application to fill a judicial vacancy and, if nominated, his acceptance of the position. Under the Code of Ethics, no person holding “a senior policy-making, discretionary, or confidential position on the staff of any state elected official or the general assembly” shall seek or accept any other employment by any state agency while serving in such position and for a one-year period thereafter. R.I. Gen. Laws § 36-14-5(o)(1). This prohibition does not apply to a person having a minimum of five (5) years of uninterrupted state service,[5] nor does it prevent a person from seeking or holding elective office, nor from seeking and obtaining employment in another senior policy-making, discretionary, or confidential position on any other General Officer’s or the General Assembly’s staff. Section 36-14-5(o)(2), (3) & (4). Furthermore, the Ethics Commission may authorize exceptions to this prohibition “where such exemption would not create an appearance of impropriety.” Section 36-14-5(o)(5). [6] The relevant question for the Commission’s determination is whether the Petitioner’s current employment as a part-time attorney for the House Judiciary Committee amounts to “a senior policy-making, discretionary, or confidential position on the staff . . . of the General Assembly[.]” If so, then section 36-14-5(o) prohibits him from seeking or accepting most other state employment, including a judgeship, for a period of one (1) year after he leaves his current position. If not, then section 36-14-5(o) does not apply and the Petitioner is free to continue seeking and to accept, if nominated, an appointment to the bench. In answering this question, it is instructive to consider previous advisory opinions in which the Ethics Commission applied section 5(o) after making an express or implied finding that a public employee served in a “senior policy-making, discretionary, or confidential position” on the staff of an elected official or the General Assembly. The clearest example of a person serving in such a position can be found in Advisory Opinion 2009-16, where the Commission applied section 5(o) to the Governor’s Chief of Staff. There, the Chief of Staff’s status as a “senior policy-making, discretionary, or confidential” staff member of the Governor was based on his express representations that he was a senior policy advisor to the Governor, that he served in a confidential capacity, that all other staff in the Governor’s Office were subordinate to him in the chain of command, and that he was one (1) of only three (3) staff members who had full and open access to the Governor. In Advisory Opinion 2012-20, we applied section 5(o) to the Governor’s Director of Performance Management who had also served within the year as the Governor’s Director of Policy. In his letter to the Ethics Commission requesting an opinion, the petitioner noted that he served as the primary point of contact from the Governor’s office on performance management issues, working with cabinet directors and agency leadership to develop performance metrics that were consistent with the Governor’s agenda. The petitioner also developed and implemented the Governor’s policy agenda, participated in developing the annual budget request, and served as the Governor’s liaison to the Federal government and Congressional offices. Given these duties, the Commission applied section 5(o) but found that, under the unique circumstances presented, the petitioner was entitled to accept other employment pursuant to one of the section’s four exemptions.[7] In Advisory Opinion 2010-49, we applied section 5(o) to the Deputy Executive Counsel in the Office of the Governor. However, that opinion does not assist in our analysis of whether the instant Petitioner serves in a senior policy-making, discretionary or confidential position for the General Assembly. The petitioner in Advisory Opinion 2010-49 wrote to the Ethics Commission with a stated assumption that his position was a senior policy-making, discretionary or confidential position on the staff of the Governor. He wrote, “assuming arguendo that my current position qualifies me as a ‘policy-making, discretionary, or confidential staff member,’ does my five-year uninterrupted state employment . . . exempt me from the provisions of [section 5(o)]?” The Commission answered the question presented affirmatively, finding that the petitioner’s five (5) years of state service exempted him from section 5(o), without challenging or analyzing the petitioner’s assumption as to section 5(o)’s initial applicability. Conversely, the Commission has issued advisory opinions in which it determined that section 5(o) did not apply because the petitioner was not in a “senior policy-making, discretionary, or confidential position on the staff” of a state elected official or the General Assembly. For example, in Advisory Opinion 2003-50, the Commission found that section 5(o) did not apply to a “Senior Policy Analyst” for the General Assembly because, notwithstanding his title, the position was not, in fact, a senior policy-making, discretionary or confidential position in the General Assembly. Although the Senior Policy Analyst’s duties included discussing policy positions and potential legislation with Senators and Senate leadership, the petitioner was not a senior staff member of the Senate and he did not manage personnel or budgets. Rather, the petitioner reported to and was supervised by the Director of the Senate Policy Office, who was the person that worked directly with the Senate leadership and attended the Senate’s senior staff meetings. The Commission found that the petitioner’s represented duties and responsibilities did not bear the indicia of a senior policy-making, confidential or discretionary position on the General Assembly’s staff. Similarly, in Advisory Opinion 2010-53, the Commission opined that a communications and policy analyst on the Governor’s staff did not hold a “senior policy-making, discretionary or confidential position” that was regulated by section 5(o). Critical to that finding were the petitioner’s representations that he did not report directly to the Governor or take part in meetings between the Governor and his senior staff, and that his position was subordinate to the Governor’s Press Secretary and his Director of Communications, which were considered “senior staff” positions. More recently, in Advisory Opinion 2013-31, we opined that section 5(o) did not apply to the Director of the Department of Administration. There, although the Director was very clearly serving in a “senior policy-making, discretionary or confidential position,” he did not serve “on the staff” of an elected official. Department directors, while appointed by the Governor, do not work in the Office of the Governor and are not on the Governor’s staff. Thus, section 5(o) as written does not apply to department directors. These prior advisory opinions involving section 5(o) help to clarify the proper interpretation and meaning of the phrase, “senior policy-making, discretionary, or confidential position.” Initially, we note that the qualifier, “senior,” at the start of this phrase must be intended to modify not only “policy-making,” but also the words “discretionary” and “confidential.” To hold otherwise would subject most, if not all, of an elected official’s staff (including receptionists, data entry clerks, IT/computer technicians, pages and interns) to section 5(o)’s restrictions. Accordingly, we believe that section 5(o) is intended to apply to the most senior-level staffers of a state elected official who work directly with the official: (1) to help set policy (senior policy-making staff); or (2) whose duties are determined and set according to the needs and judgment of the elected official (senior discretionary staff); or (3) whose duties require access to non-public or privileged information obtained by or entrusted to the elected official (senior confidential staff). Common indicia of an elected official’s “senior” staff status identified in our prior advisory opinions have included: Having direct access on a regular basis to the elected official for whom one serves; being included in senior staff or cabinet level meetings with the elected official; being supervised and directed as to one’s regular duties by the elected official; having delegated authority to speak or act on behalf of the elected official; having supervisory responsibility over subordinate staff members; having decision-making authority, especially in the areas of policy-making or budgets; or having access to confidential information entrusted to an elected official. The instant Petitioner represents that his position as a part-time committee attorney does not bear these indicia of a senior policy-making, discretionary or confidential position for the General Assembly. He states that his duties are limited to working with the House Judiciary Committee, and involve reading and analyzing the legal effect and sufficiency of proposed legislation that has been referred to it. He states that he does not suggest, endorse, oppose or draft legislation or amendments to legislation. Rather, the Petitioner attends the public hearings of the Judiciary Committee where his role is limited to responding to occasional legal questions asked by the Chair. The Petitioner further represents that as a committee attorney he is directly supervised by John Manni, another employee of the JCLS who serves as the Director of Committee Attorneys, who in turn reports to Richard Raspallo, Chief Legal Counsel to the Speaker of the House of Representatives. The Petitioner states that as a committee attorney he does not have formal contact or meetings with House leadership, State Representatives or members of the Judiciary Committee other than the Chair of the Judiciary Committee who the Petitioner may assist when the Chair prepares to discuss bills on the House floor that have passed through the Judiciary Committee. Additionally, the Petitioner represents that he has no business or professional legal contact with the five (5) majority and minority leaders of the General Assembly who serve as the voting members of the JCLS. Considering the Petitioner’s representations, and consistent with the reasoning and analysis contained in our prior advisory opinions, we do not find that the Petitioner’s part-time employment as a committee attorney is subject to section 5(o)’s limitation on seeking or accepting other state employment. As represented, the Petitioner’s responsibilities for the House Judiciary Committee do not equate to those of the General Assembly’s senior policy-making, discretionary or confidential staff members. Therefore, it is the opinion of the Rhode Island Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from seeking and, if nominated, accepting an appointment to serve as an Associate Judge of the Rhode Island District Court. 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(o) Other Relevant Authorities: R.I. Const., art. X, sec. 4 § 8-16.1-6 § 22-11-1 et seq. Related Advisory Opinions: A.O. 2013-31 A.O. 2012-20 A.O. 2010-53 A.O. 2010-49 A.O. 2009-16 A.O. 2003-50 Keywords: Public Employment Revolving Door [1] The fact of the Petitioner’s prior service as an elected official is included as background information, but it is not relevant to the instant question presented. Although members of the General Assembly are prohibited from seeking or accepting state employment while serving in office and for one (1) year thereafter (R.I. Gen. Laws § 36-14-5(n); Commission Regulation 36-14-5007), these revolving door prohibitions are not applicable to the Petitioner given that he left office over five (5) years ago. [2] The JCLS was created by statute to have exclusive authority over all administrative and financial matters affecting the operation of the General Assembly. R.I. Gen. Laws §§ 22-11-1 et seq. The JCLS is comprised of five (5) members, who are: the Speaker of the House of Representatives serving as the Chairperson; the President of the Senate serving as the Vice Chairperson; the House Majority Leader; the House Minority Leader; and the Senate Minority Leader. The General Assembly’s website describes the work of the JCLS as follows: Under the direction of the Joint Committee on Legislative Services, the JCLS Administrative Office is responsible for the overall day-to-day operations of the General Assembly. Matters pertaining to personnel, payroll and benefits, operations, purchasing and accounts payable are handled through this office. The JCLS office prepares and submits the annual budget and oversees the finances of the Legislature. The operations staff is responsible for the purchasing function, the upkeep and maintenance of the legislative offices in the State House, the disbursement of supplies to the various offices of the JCLS, and is responsible for repairs to equipment and furnishings of the Legislature. http://www.rilin.state.ri.us/Pages/JCLS.aspx. [3] The Judicial Nominating Commission was created through an amendment to the Rhode Island Constitution in 1994, establishing an independent, nonpartisan commission responsible for providing the Governor with a list of persons who, on the basis of merit, are qualified to fill a judicial vacancy. R.I. Const. art. X, sec. 4. Pursuant to its constitutionally mandated enabling legislation, for a vacancy on the District Court the JNC must vet applicants and then submit to the Governor a list of three to five “highly qualified candidates.” R.I. Gen. Laws § 8-16.1-6. The statute then calls for the Governor’s nomination of one of the three to five candidates, subject to the advice and consent of the Rhode Island Senate. Id. [4] Jennifer Bogdan, R.I. judge candidate Williamson asked to seek ethics opinion, The Providence Journal, November 26, 2015. [5] See A.O. 2009-16 (the Governor’s Chief of Staff was not prohibited by section 5(o) from seeking or accepting appointment to the judiciary given his many years of uninterrupted state employment, including more than eight years of state employment before moving into the Office of the Governor); A.O. 2003-50 (Senior Policy Analyst in the Senate Policy Office of the Rhode Island General Assembly would qualify for exemption from section 5(o)’s revolving door prohibition, given his more than five (5) years of uninterrupted state service). [6] See A.O. 2012-20 (allowing the Governor’s Director of Performance Management to move into a nearly identical position that had been newly created by statute within the Department of Administration, given the petitioner’s unique and key role in developing the program which inspired the new statutory position). [7] See supra, n.6.