Advisory Opinion 2024-23

Rhode Island Ethics Commission

Advisory Opinion No. 2024-23

Approved: June 25, 2024

Re:  Patrice Milos

QUESTION PRESENTED:

The Petitioner, a member of the Board of Directors of the Rhode Island Life Science Hub, a state appointed position, requests an advisory opinion regarding whether she may accept and serve in the position of Interim President of the Life Science Hub until a permanent President/CEO can be found and confirmed by the Rhode Island Senate. 

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Board of Directors of the Rhode Island Life Science Hub, a state appointed position, may accept and serve in the position of Interim President of the Life Science Hub until a permanent President/CEO can be found and confirmed by the Rhode Island Senate, based on the Ethics Commission’s finding that, under the circumstances presented, disallowing the Petitioner’s employment in this position would create a substantial hardship for the Life Science Hub. 

The Petitioner is a member of the Board of Directors of the Rhode Island Life Science Hub (RILSH), a quasi-public state agency created through the 2023 passage of enabling legislation in the Rhode Island General Assembly known as the “Rhode Island Life Science Hub Act.”  See R.I. Gen. Laws § 23-99-1 et seq. (the Act).  Pursuant to the Act, the RILSH was established to be the central and coordinating organization of life science initiatives on behalf of the state, and shall:

(1) Facilitate the development of medical advances and scientific breakthroughs with companies that specialize in the fields of: medical devices, biomedical technology, medical therapeutic therapies, biogenetics, biomedical engineering, biopharmaceuticals, genomics, and life sciences; and

(2) Through targeted investment of grants, tax credits, and incentives, fund and incubate Rhode Island-based life science companies that will promote economic and workforce development within the state and that shall allow the state to successfully compete in the national and international life science industries.  

R.I. Gen. Laws § 23-99-2.  The RILSH is governed by a fifteen-member Board of Directors, seven of whom must possess specifically enumerated qualifications and are appointed by the Governor, and eight of whom must hold enumerated leadership positions with Rhode Island government agencies, higher education institutions, and healthcare providers.  R.I. Gen. Laws § 23-99-4(b).  Directors serve without compensation and for a term of four years.  §§ 23-99-4(d) and (f).  Among the powers of the Board of Directors is the authority to hire, subject to the advice and consent of the Rhode Island Senate, a President who will serve as the RILSH’s full-time chief executive officer (CEO).  § 23-99-4(k). 

The Petitioner states that the RILSH’s inaugural Board of Directors was appointed by the Governor in January and February of 2024.  Pursuant to the Act, the Chair of the Board of Directors must be a person who has been a senior executive with extensive background in the banking, grant making, and fundraising fields.  On January 11, 2024, the Rhode Island Senate confirmed the Governor’s nomination of Neil Steinberg, the former President and CEO of the Rhode Island Foundation, to serve as Chair.  The Petitioner was appointed to the Board of Directors in January 2024, to satisfy the Act’s requirement that one Director be a “member of a life science trade association.”  § 23-99-4(b).  Since joining the RILSH Board of Directors, the Petitioner states that she has served in roles such as Corporate Secretary, Summit Panel Moderator, Investment Review Committee member, and Lab RFP Review Committee member.  The Petitioner represents that she has over 30 years of relevant research, business, and advocacy experience, including extensive experience in the life science field having served as the chair of a life science trade association and as CEO of multiple biotech companies.  She notes that she was the author of a 2019 RI Bio hub report which laid the foundation for the future of the RILSH.  The Petitioner has a master’s and doctoral degree in biology from Rensselaer Polytechnic Institute, and she was a postdoctoral fellow at Harvard and Brown Universities.  She spent the first 14 years of her career at Pfizer Inc., where she advanced to executive director of molecular medicine and returned later to head the company’s Centers for Therapeutic Innovation in Boston. 

According to the Petitioner, the Board of Directors held its first meeting on January 22, 2024.  The minutes of that meeting show that the RILSH’s immediate objectives were to hire a President/CEO by May 2024,[1] execute strategic objectives for workforce development, establish a wet lab incubator and shared lab space facility, and establish a life science investment fund to finance the operations and initiatives of the RILSH.  The minutes also show that the Board of Directors voted to hire a global organizational consulting firm (the consultant) to conduct a nationwide search for a President/CEO.   

The Petitioner represents that the consultant’s search yielded substantial interest and, in April, it was reported by the media that the RILSH’s Chair advised that “he was confident in making the June deadline, with seven semifinalists already plucked from the field of 100-plus applicants.”[2]  The RILSH Board of Directors meeting minutes for April 23, 2024, indicate that the consultant announced that it had reviewed 225 potential candidates for President/CEO, had screened out 210+ candidates, and anticipated three to four finalists. The minutes of the RILSH’s meeting on May 9, 2024, indicate that the Board of Directors interviewed three finalists for the President/CEO position during executive session, and voted to offer one of the candidates the position subject to negotiation of a satisfactory contract.  Notwithstanding the May 9^th vote to offer the position to a candidate, the Board of Directors announced at a special meeting held on May 15, 2024, that it would continue its search for a President/CEO.  The Petitioner represents that upon a determination that no satisfactory candidate had been identified, and that a new round of searching could not be completed in time to obtain Senate approval prior to its June 2024 recess,[3] the Board of Directors directed the consultant to continue its search for a permanent President/CEO while the Board of Directors moved to identify and hire an Interim President who possessed knowledge of the life science industry and experience in management to immediately execute the strategic objectives and priorities outlined in the Act.

Although it had not yet identified a President/CEO to administer its day-to-day operations, the RILSH moved forward with its Act-mandated objectives and initiatives.  In April 2024, the RILSH issued an RFP to identify a firm to build both wet and dry lab space in Rhode Island (Lab RFP), per the Act’s mandate that the RILSH fund and incubate Rhode Island-based life science companies.  § 23-99-2.  Then, on May 21, 2024, the RILSH held its Inaugural Life Science Summit at the Rhode Island Convention Center, with over 500 attendees/stakeholders.  The Petitioner indicates that the RILSH wishes to maintain the momentum created by the Summit and to move forward with the selection of a contractor to build a life science incubator with wet and dry lab space in Rhode Island through the pending RFP.

At its June 11, 2024 meeting, the RILSH Board of Directors announced that it had voted to approve a three-month contract to hire the Petitioner as RILSH’s Interim President for a renewable three-month term beginning July 1, 2024.  The Petitioner informs that she recused from this vote and left the meeting room.  The Petitioner represents that her compensation under the contract will be $25,000 per month, which she states is the approximate estimated salary of a permanent President/CEO.  The Petitioner further represents that she has agreed to forgo the receipt of employee benefits.  She states that the contract offer will be revoked absent approval from the Rhode Island Ethics Commission.  Should such approval be conditioned upon the Petitioner resigning from her position on the Board of Directors, the Petitioner states that she is willing to do so. 

The Petitioner advises that she is not interested in serving as the RILSH’s permanent President/CEO, and she will not apply for the position.  Rather, she believes that her extensive background and experience in life science and her familiarity with the RILSH’s ongoing projects will provide necessary short-term continuity and expertise as Interim President to maintain and capitalize on the RILSH’s existing momentum following its successful Summit in May and its pending review and implementation of the existing RFP to develop and build a new life science incubator and lab space. 

The instant request for an advisory opinion was received by the Ethics Commission on June 20, 2024.  Therein, the Petitioner seeks an opinion from the Ethics Commission that her acceptance of the position as the RILSH’s Interim President would not contravene the Code of Ethics under the circumstances presented.  In conjunction with the Petitioner’s request, the Commission also received correspondence from the RILSH’s Chair, Neil Steinberg, requesting that the Petitioner be permitted to serve as the RILSH’s Interim President based upon a finding of hardship to the RILSH in the absence of such permission.

Cognizant that the Rhode Island Code of Ethics contains a provision, 520-RICR-00-00-1.5.1 Employment from Own Board (36-14-5006)(hereinafter, Regulation 1.5.1), which generally prohibits an appointed official from accepting paid employment or appointment that requires the approval of the body of which he or she is a member, the Petitioner seeks the Ethics Commission’s guidance concerning the application of Regulation 1.5.1.

Regulation 1.5.1 is one of the so-called “revolving door” provisions of the Code of Ethics.[4]  Entitled “Employment From own Board,” Regulation 1.5.1 generally prohibits elected and appointed officials from accepting a paid position that is offered by or through their own board or elective body.  The regulation reads as follows:

No elected or appointed official may accept any appointment or election that requires approval by the body of which he or she is or was a member, to any position which carries with it any financial benefit or remuneration, until the expiration of one (1) year after termination of his or her membership in or on such body, unless the Ethics Commission shall give its approval for such appointment or election, and, further provided, that such approval shall not be granted unless the Ethics Commission is satisfied that denial of such employment or position would create a substantial hardship for the body, board, or municipality.

Enacted in 1991, the Ethics Commission has stated that the general purpose of Regulation 1.5.1 is to prevent government employees and officials from unfairly profiting from or trading upon the contacts, associations, and special knowledge that they acquired while performing their public duties as members of state and municipal boards.  A.O. 2004-36 (citing In re Advisory From the Governor, 633 A.2d 644, 671 (R.I. 1993)).

The Ethics Commission has considered and applied Regulation 1.5.1 in numerous past advisory opinions.  In Advisory Opinion 2016-43, the Commission opined that a member of the North Smithfield Planning Board was prohibited from accepting employment as the Town Planner, given the Planning Board’s role in approving any hiring for the position.  Seealso A.O. 2010-26 (opining that a member of the City of East Providence Canvassing Authority may not be hired by the Authority as the Canvassing Authority Administrator); A.O. 2010-24 (opining that a member of the Coventry Housing Authority Board of Commissioners was prohibited from accepting employment from the Housing Authority as its Maintenance Director); A.O. 2004-36 (opining that a state employee sitting on the Rhode Island Water Resources Board as the designee of the Director of Administration could not become employed by the Board as its General Manager while serving and for one year thereafter); and A.O. 2001-53 (former Tiverton Town Councilor may not accept appointment as the Tiverton Fire Chief prior to the expiration of one year from the date of leaving his position on the Council, given that appointment requires the Council’s advice and consent). 

Initially, it is clear that the facts set forth by the Petitioner implicate the provisions of Regulation 1.5.1.  The Petitioner is a state appointed official serving on the RILSH’s Board of Directors. The Act expressly empowers the Board of Directors to hire a President and CEO.  § 23-99-4(k).  This is a compensated position that will receive pay in the amount of $25,000 per month.  Based on these factors, the Petitioner is prohibited by the terms of Regulation 1.5.1 from accepting the Board of Directors’ offer of employment as Interim President unless the Ethics Commission gives its approval based upon a finding that enforcement of Regulation 1.5.1 would result in a substantial hardship to the RILSH.

Regulation 1.5.1 provides for a single exception to its prohibition on accepting employment from one’s own board.  Such exception is authorized only if “the Ethics Commission is satisfied that denial of such employment or position would create a substantial hardship for the body, board, or municipality.”  Regulation 1.5.1.  Without a showing and finding of a substantial hardship to the governmental body, as opposed to a hardship to the public official seeking employment, the official may not accept a paid appointment from their own Board.

There is no definition of “substantial hardship” in the Code of Ethics. Instead, the Ethics Commission makes that determination on a case-by-case basis considering the totality of the circumstances.  Some of the circumstances the Ethics Commission has previously relied upon in making this determination include: 

1. Whether and to what extent the position being filled was adequately publicized or advertised;

2. whether the position requires very specific and unique skills;

3. whether there are any other qualified candidates available to fill the position;

4. whether the position has been vacant for a long period of time;

5. whether the employment is a temporary measure or intended to be permanent; and

6. whether and to what extent the public official being offered the employment has participated in the hiring process or decision-making.

In Advisory Opinion 2006-1, the Commission found that the Rhode Island Municipal Police Training Academy (“Training Academy”) would suffer a substantial hardship if it was not able to hire the Chairman of the Police Officers Commission on Standards and Training (“POST Commission”) as its Director, notwithstanding that the POST Commission oversaw the operation of the Training Academy. There, the petitioner had recused from any POST Commission matters relating to filling the Director’s position for which he had applied, which was intended to be permanent.  After publicly advertising the position and interviewing candidates, the petitioner was selected as the first choice of two qualified candidates, but the only other qualified candidate withdrew his application leaving the petitioner as the sole remaining qualified candidate. 

More recently, in Advisory Opinion 2023-41, the Ethics Commission opined that a substantial hardship existed to permit a member of the Tiverton Wastewater District Board of Directors to be hired as the Executive Director of the Wastewater District, provided that he resigned from the Board of Directors upon accepting the position.  Factors considered by the Ethics Commission in making that determination included that: 1) the Board had just completed the hiring process for its previous Executive Director earlier in the year, but that person resigned after less than two months; 2) the Board had then engaged in further advertising and networking with professional associations to search for qualified candidates, but no other qualified candidates were identified; 3) there was a looming deadline for the completion of a substantial sewer expansion project that required the immediate leadership of a qualified Executive Director; and 4) the Petitioner was uniquely qualified  to serve in the position and he had been, during the vacancy, voluntarily assisting with numerous projects and issues that would normally be handled by the Executive Director.  See also A.O. 2014-18 (member of Rhode Island Fire Safety Code Board of Appeal and Review could be hired as its Executive Director, based on finding of substantial hardship, because the position had been vacant for six months and required unique skills and qualifications, public advertisement had produced no other qualified candidates, and the petitioner was not involved in the hiring process); A.O. 95-118 (opining that a member of the Rhode Island Commission on Women could temporarily serve as the Commission’s Interim Executive Director, based upon the following representations: 1) the petitioner was uniquely familiar with the work of the Commission and its office procedures; 2) the Commission had been without a full-time Executive Director for over six months; 3) the petitioner would resign from her position on the Commission; 4) the petitioner would serve as Interim Executive Director temporarily while the Commission completed its search for a permanent replacement; and 5) there would be an open and public hiring process for the permanent Executive Director position).

In the present matter, the Petitioner and the RILSH, through its Chair, have offered numerous circumstances that are supportive of a finding of substantial hardship.  The President/CEO position requires a person with specialized skills, having both life sciences expertise and extensive managerial experience.  The RILSH has undertaken substantial and reasonable efforts to locate a qualified permanent President/CEO, including the hiring of an organizational consulting firm to conduct a nationwide search.  Notwithstanding these efforts, no qualified or satisfactory candidate was identified.  The consultant has begun a new search round, but does not expect semi-finalists to be selected until four or five months from now.  The permanent position requires Senate confirmation, and the Senate is expected to be in recess for the next six months.  The RILSH currently has no staff, but immediately requires a full-time CEO to oversee its ongoing, mandated initiatives and pending RFP to develop a life science incubator and lab space in Rhode Island.  The Petitioner is uniquely qualified to serve as Interim President given her background and experience, and she did not participate in the Board of Directors’ decision to hire her.  The Interim President position is temporary in nature, and the Petitioner will not seek or accept the position of permanent President/CEO. 

Having considered the circumstances represented by the Petitioner and the RILSH Chair, as well as our previous advisory opinions applying Regulation 1.5.1, it is the opinion of the Ethics Commission that the Petitioner may accept and serve in the position of Interim President of the RILSH until a permanent President/CEO can be found and confirmed by the Rhode Island Senate. This opinion is based on a finding by the Ethics Commission that the denial of the Petitioner’s services on a temporary basis would create a substantial hardship for the RILSH. 

However, this approval of the Petitioner’s employment is conditioned upon her resignation from the RILSH Board of Directors, an action that the Petitioner has proactively agreed to take.  Resignation from the Board of Directors is necessary given that every action the Petitioner takes as Interim President is properly subject to the scrutiny, supervision, and direction of the Board of Directors.  Therefore, accepting employment as Interim President risks impairing her independence of judgment as to her official duties as a RILSH Director, as prohibited by the Code of Ethics.  See R.I. Gen. Laws § 36-14-5(b). 

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(b)
520-RICR-00-00-1.5.1

Other Authority:

In re Advisory From the Governor, 633 A.2d 644, 671 (R.I. 1993).
§ 23-99-1
§ 23-99-2
§ 23-99-4

Related Advisory Opinions:

A.O. 2016-43
A.O. 2014-18
A.O. 2012-31
A.O. 2010-26
A.O. 2010-24
A.O. 2006-1
A.O. 2004-36
A.O. 2001-53
A.O. 2000-32
A.O. 95-118

Keywords: 

Hardship Exception
Revolving Door

[1] The Petitioner notes that the Board of Directors was operating under an expedited timeline given that the President/CEO position would require Senate approval, and the 2024 Senate session was expected to recess or adjourn by the end of June 2024 and not reconvene for new confirmations until the next legislative session that begins in January 2025.

[2] See Nancy Lavin, R.I. Life Science Hub board looks for temporary hire while permanent president search continues, Rhode Island Current, May 16, 2024.  https://rhodeislandcurrent.com/2024/05/16/r-i-life-science-hub-board-looks-for-temporary-hire-while-permanent-president-search-continues/.

[3] According to the Petitioner, the consultant informed the RILSH that a new round of President/CEO semi-finalists would not be identified until October or November of 2024. 

[4] Other sections of the Code of Ethics making up its revolving door provisions include: R.I. Gen. Laws § 36-14-5(e) (prohibiting public officials and employees from representing themselves or others before their own agency); 520-RICR-00-00-1.5.2 Prohibition on State Employment (36-14-5007) (prohibiting any member of the General Assembly from seeking or accepting state employment, not held at the time of the member's election, while serving in the legislature and for one year thereafter); § 36-14-5(n) (applying Regulation 1.5.2’s prohibitions to all state elected officials); § 36-14-5(o) (prohibiting senior policy-making, discretionary or confidential staffers of state elected officials from seeking or accepting other state employment, subject to certain exceptions); 520-RICR-00-00-1.5.4 Municipal Official Revolving Door (36-14-5014); and 520-RICR-00-00-1.5.5 State Executive/Administrative Revolving Door (36-14-5015).