Advisory Opinion No. 2012-19 Advisory Opinion No. 2012-19 Re: Steven Gianlorenzo QUESTION PRESENTED: The Petitioner, a member of the Rhode Island Contractors’ Registration and Licensing Board, a state appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from accepting employment with the Contractors’ Registration and Licensing Board as a Senior State Building Code Official. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Rhode Island Contractors’ Registration and Licensing Board, is not prohibited by the Code of Ethics from accepting employment with the Contractors’ Registration and Licensing Board as a Senior State Building Code Official, a position governed by the Department of Administration, given that the Board has no hiring, supervisory, policy or fiscal authority over the position and also provided that he resigns as a member of the Board. The Petitioner, a registered contractor, is a member of the Rhode Island Contractors’ Registration and Licensing Board (“Board”) having been appointed on September 11, 2001. All residential building contractors are required to register annually with the Board and pay a registration fee. As part of its duties, the Board regulates residential builders through the enforcement of complaints and the issuance of fines where contractors have failed to register with the Board and/or committed other violations (e.g., had insufficient insurance coverage, or hired non-registered subcontractors). Claims may also be brought against contractors relative to workmanship, as well as other allowable claims under R.I. Gen. Laws § 5-65-11. The Board has a dispute resolution process that is followed in an effort to resolve claims prior to adjudication. Contested claims or cases, contested enforcement proceedings, as well as contested administrative fines are heard in accordance with the Administrative Procedures Act (R.I. Gen. Laws § 42-35-1 to -18) and the administrative regulations promulgated by the Board. The procedures for contested matters are as follows: (a) all matters that cannot be resolved proceed to an administrative hearing before a hearing officer; (b) following the hearing, the hearing officer issues a “proposed order” appealable to the full Board; (c) if appealed, the full Board considers the appeal without new evidence and may remand, modify, uphold, settle or dismiss the matter; and (d) following review on appeal or where no appeal is sought, the Board issues a final order which is appealable to the Superior Court. The failure to comply with a final order of the Board is a criminal offense in accordance with R.I. Gen. Laws § 5-65-19. The Board is a fifteen member panel appointed by the Governor and is comprised of: eight registered contractors; a licensed architect; two licensed home inspectors; the President of the Rhode Island Builders Association or designee; the Executive Director of the Rhode Island Association of General Contractors; a member of the Building Code Standards Committee; and a member of the general public. R.I. Gen. Laws § 5-65-14. The Board shall also have an Executive Director who is a member of classified service on the staff of the State Building Commissioner. R.I. Gen. Laws § 5-65-15(c). All employees of the Board, including the Executive Director, are hired by the Department of Administration (“DOA”) and the Board does not participate in the process. The Petitioner represents that the members of the Board have no supervisory, policy-making, hiring or fiscal authority with regard to the Board and/or its employees, including the Executive Director. Rather, the Petitioner states that DOA maintains such authority. In June 2011, the Petitioner applied, in response to a vacancy notice, for the position of Senior State Building Code Official. The position was being offered by DOA for placement with the Contractors’ Registration and Licensing Board. The duties of the available position include enforcement as well as the investigation of claims. Related to enforcement, the position requires the issuance of tickets or violations for non-compliance with rules and regulations established by the Board. The Senior State Building Code Official may also be called upon to perform investigative duties in connection with complaints that have been filed, typically by homeowners, against contractors related to poor workmanship. The Petitioner was interviewed and has been selected for the position. He informs that he will resign as a member of the Board if he is permitted to accept the position. The hiring of the Senior State Building Code Official rests with DOA and the Board does not participate in the process. In fact, the Executive Director and all other members of the Board’s staff are employees of DOA. The present position was posted by DOA and applications were directed to and received by DOA. The initial applications were examined by DOA and those applications meeting certain pre-requisites for consideration were sent to the Executive Director of the Board. The Executive Director set up a selection committee using the same individuals from a previous hiring process for the same position. The committee was comprised of three members: the State Building Commissioner; an Administrator from the State Division of Capital Projects and Property Management; and the Executive Director of the Board. The selection committee reviewed the applications and selected those candidates that had the necessary certifications and were most qualified for interview. Five candidates were selected, two had been previously interviewed for a similar position, and the remaining three were interviewed. The committee conducted the interviews and rated all five candidates based on the skills and knowledge required for the position. The committee then forwarded a list of the top three candidates meeting all of the necessary requirements to the Director of DOA. The Board members did not review applications or participate in the interviewing or the selection of candidates. Although the Petitioner was the top listed candidate, the ultimate selection of the candidate for hire was in the sole discretion of the Director of DOA. The Board itself did not participate in the hiring process in any way, and the Board’s approval to fill the position was neither sought nor required. Under the Code of Ethics, no appointed official may accept any appointment or election that requires the approval by the board of which he is a member, to any position which carries financial benefit or remuneration, until the expiration of one (1) year after termination of his membership on the board, unless the denial of such employment would create a substantial hardship for the board. Commission Regulation 36-14-5006 (“Regulation 5006”). We have previously stated that the general purpose of Regulation 5006 and of the Code’s revolving door provisions 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 a member of state and municipal boards. The Commission has issued numerous advisory opinions involving the application of Regulation 5006. See 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); and 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, while serving and for one year thereafter, become employed by the Board as its General Manager). Although the prohibition of Regulation 5006 only applies to situations where the employment requires the approval of one’s own board, in A.O. 2003-65 the Commission extended Regulation 5006 to a School Committee member who wished to apply to the Athletic Director to provide sports officiating services to the school department. Under the facts represented, sports officials were selected by the Athletic Director, who in turn was hired by the School Committee. There, the Commission concluded that “[b]ecause the School Committee selects the Athletic Director, who in turn selects the sports officials, the petitioner’s continued receipt of financial remuneration for his officiating services would violate the spirit if not the letter of Regulation 5006.” Id. The Commission likewise applied Regulation 5006 in A.O. 2010-24, opining that a member of the Housing Authority Board of Commissioners was prohibited from accepting employment from the Housing Authority as its Maintenance Director, given that the board was responsible for hiring the Executive Director who was then responsible for hiring the other employees, including the maintenance director. The instant matter is distinguishable from previous opinions in that the Petitioner seeks to accept employment to a position that does not require the hiring approval of the Board of which he is a member. Furthermore, although the Executive Director has some participation in the hiring of the employees of the Board, including the position sought by the Petitioner, the Board itself has no hiring, supervisory, policy or fiscal authority over the Executive Director or other employees of the Board as the actual decision making authority on such matters rests with DOA. For all of these reasons, the Petitioner is not prohibited by the Code of Ethics from accepting employment with the Contractors’ Registration and Licensing Board as a Senior State Building Code Official, a position governed by the Department of Administration, provided, however, that he resigns as a member of the Board. Code Citations: 36-14-5006 Related Advisory Opinions: 2010-26 2010-24 2004-36 2003-65 Keywords: Employment Revolving Door Appointing authority