Advisory Opinion No. 2011-43

Re: Robert Howe

QUESTION PRESENTED

The Petitioner, the former Director of Emergency Management and former Acting Director of Public Works for the City of Pawtucket, municipal appointed positions, requests an advisory opinion regarding whether his consulting company may develop an emergency plan for, and provide related instruction to, the Pawtucket School Department, whether he may perform emergency safety related instruction to schools and hospitals in the City and whether he may sit on public safety advisory boards for Memorial Hospital of Rhode Island and Tolman High School.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the former Director of Emergency Management and former Acting Director of Public Works for the City of Pawtucket, may develop an emergency plan for, and provide related instruction to, the Pawtucket School Department, that he may perform emergency related safety instruction to schools and hospitals in the City, and that he may sit on public safety advisory boards for Memorial Hospital of Rhode Island and Tolman High School, provided that he does not represent himself or others, or act as an expert witness before the City of Pawtucket Emergency Management Agency, Public Works Department, Police Department, Fire Department or any other City departments having jurisdiction over emergency management issues prior to the expiration of one year from the date of his resignation.

The Petitioner is the former Director of Emergency Management for the City of Pawtucket, appointed on August 14, 2007. In May, 2010, the Petitioner was also appointed to the position of Acting Director or Public Works. He held both positions until his resignation on July 20, 2011. Prior to holding those positions, the Petitioner served as a firefighter and Lieutenant in the Pawtucket Fire Department.

The Petitioner reports that during his tenure as the Director of Emergency Management, the Department was a subsidiary of the Police Department. Since the Petitioner’s resignation, the Chief of the Fire Department has served as Acting Director of Emergency Management. The primary purpose of the Emergency Management Agency is to protect life and property in the event of a disaster or crisis situation in the City. The Petitioner reports that his duties as Director of Emergency Management primarily involved grant writing and urban area initiatives. Since his separation from employment with the City of Pawtucket on July 20, 2011, the Petitioner has established a safety consulting business, New England Safety Solutions, a sole proprietorship consulting firm specializing in business, school and personal safety.

The Petitioner reports that he has been asked by the Pawtucket School Department to develop an emergency plan. The Petitioner further reports that the report would be submitted to the Superintendent of Schools for the City and that the Superintendent together with the School Committee would review and decide whether to approve and accept the plan. The Petitioner also reports that the plan is not submitted to the Pawtucket Emergency Management Agency, Public Works Department, Police Department or Fire Department for review and/or decision on approval. In conjunction with his development of a safety plan for the Pawtucket School Department, the Petitioner would also be required to provide instruction to members of the School Department regarding the implementation of the plan and other safety related issues.

The Petitioner reports that he is certified as an instructor in National Incident Management System (“NIMS”) and Incident Command by the Federal Emergency Management Agency (“FEMA”). The Petitioner seeks to provide NIMS and Incident Command instruction to schools and hospitals in the City of Pawtucket.

The Petitioner also reports that as Director of Emergency Management he served as an advisor to the Tolman High School public safety board. Since his resignation from the position of Director of Emergency Management, he has been asked to continue to serve as an advisor to the board in his private capacity. As an advisor, the Petitioner would provide information regarding school related safety issues, and he would not be provided any compensation for his service. The Petitioner also seeks to participate as member of an advisory board related to public safety issues involving Memorial Hospital of Rhode Island.

Pursuant to R.I. Gen. Laws § 36-14-5(e)(1) and (2), the Petitioner may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. A “person” is defined as an individual or business entity. Section 36-14-2(7). Section 5(e) further provides that the Petitioner may not act as an expert witness before his agency with respect to any matter the agency’s disposition of which will, or can be reasonably expected to, directly result in an economic benefit or detriment to him, a family member, business associate or any business by which he is employed or represents. Section 36-14-5(e)(3). These prohibitions remain for a period of one (1) year after the Petitioner has officially severed his position with his former agency. Section 36-14-5(e)(4). The legislative intent of this “revolving door” language is presumably to minimize any potential influence the former public employee may have with his former agency upon entering the private sector.

The Commission has consistently concluded that Section 5(e) prohibits former public officials from representing themselves, representing others or acting as an expert witness before their former agency for a period of one year following the date of separation. See A.O. 2008-39 (former Chief of the Center for Emergency Preparedness and Response at the Department of Health was not prohibited from providing consultative program review services to Rhode Island Hospital provided that he would not be representing himself, the Hospital or anyone else, nor acting as an expert witness before DOH until one year had passed since his severance from state service ); A.O. 2008-30 (former Program Manager for Assisted Living Residences in Rhode Island, and former Chief of Compliance, both for the Rhode Island Department of Health was not prohibited from working as a per diem pharmacist at Rhode Island Hospital provided he does not represent himself, the hospital or anyone else, or act as an expert witness before the DOH until one year had passed since his severance from state service).

The anticipated activity, as reported by the Petitioner, would not be violative of Section 5(e). The Petitioner, in his preparation and instruction regarding an emergency plan for the Pawtucket School Department, will not represent himself or others, or act as an expert before the Pawtucket Emergency Management Agency, Public Works Department, Police Department or Fire Department as any proposed plan is submitted to and reviewed for approval by the Pawtucket Superintendant of Schools together with the School Committee. Furthermore, the anticipated activity of providing safety related instruction to schools and hospitals in the City would likewise not result in the Petitioner representing himself or others, or acting as an expert before his former agencies as his instruction would be limited to school and hospital members and/or staff. Finally, the anticipated activity of participation in the advisory board for public safety at Tolman High School and Memorial Hospital would not require that he represent himself or others, or act as an expert before his former agencies.

In summary, the Petitioner may develop a safety plan for and provide related instruction to the Pawtucket School Department. The Petitioner may also perform emergency safety related instruction to schools and hospitals in the City and he may participate in the public safety advisory boards for Tolman High School and Memorial Hospital, provided that, in any such instance, he does not represent himself or others, or act as an expert witness before the Pawtucket Emergency Management Agency, Public Works Department, Police Department, Fire Department or any other City departments having jurisdiction over emergency management issues prior to the expiration of one (1) year from the date of his resignation.

Code Citations:

36-14-5(e)(1)

36-14-5(e)(2)

36-14-5(e)(3)

36-14-5(e)(4)

36-14-2(7)

Related Advisory Opinions:

A.O. 2008-39

A.O. 2008-30

Keywords:

Post-Employment

Revolving Door