Advisory Opinion No. 2012-20

Re: Brian M. Daniels

QUESTION PRESENTED

The Petitioner, the Director of Performance Management in the Office of the Governor, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from accepting a position as the Director of Performance Management within the newly created Office of Management and Budget in the Department of Administration.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Director of Performance Management in the Office of the Governor, may accept a position as the Director of Performance Management within the newly created Office of Management and Budget, given that the unique circumstances presented support an exception to the Code of Ethics' revolving door provision.

In January 2011, the Petitioner began working in the Office of the Governor as the Director of Policy, where his duties included developing and implementing the Governor's policy agenda, monitoring legislation in the General Assembly, participating in the development of the annual budget request, and serving as a liaison to the Federal government and Congressional offices. He relates that in April of 2011, the Governor's Office began a performance management initiative for all executive branch departments and agencies in order to develop performance metrics that encourage and measure effectiveness and efficiency. The Petitioner states that he was tasked by the Governor to lead this new performance management initiative, while still performing his regular duties as Director of Policy.

The Petitioner relates that in order to ensure that performance management received the dedicated staffing necessary to be effective going forward, in January 2012 the Governor submitted a FY 2013 budget request that included the creation of a new Office of Management and Budget ("OMB"), which would include a full-time position for a Director of Performance Management who would serve under the OMB Director. While awaiting the General Assembly's review and action on the FY 2013 budget, and in light of the pressing need for increased staffing for performance management, in April 2012 the Governor assigned the Petitioner to lead the ongoing performance management initiative on a full-time basis and named him Director of Performance Management. Although still on the Governor's staff, the Petitioner was physically moved to offices at the Department of Administration to work more closely with the Budget Office. The Petitioner's prior duties as the Governor's Director of Policy were taken over by another employee.

In June 2012, the General Assembly passed the FY 2013 budget, which accepted the Governor's proposal to create the OMB and the position of Director of Performance Management in the unclassified service. The Petitioner represents that this new statutory position entails the job responsibilities that he has held over the last fifteen months. He states that, in recognition of his past work and to ensure continuity in the development and implementation of performance management, the Governor and the Director of Administration, who has appointment authority over the OMB, have asked the Petitioner to serve as the OMB's Director of Performance Management. The Petitioner wishes to serve in that position.

The Petitioner is aware that the Code of Ethics contains "revolving door" provisions that regulate the ability of an elected official's senior staff to accept employment in other agencies under certain circumstances. Accordingly, the Petitioner seeks the Ethics Commission's guidance as to his ability to continue his work as the Director of Performance Management in the newly created Office of Management and Budget.

Under the Code of Ethics, a person holding “a senior policy-making, discretionary, or confidential position on the staff of any state elected official or the general assembly,” is prohibited from seeking or accepting 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 contains some express exceptions, such as situations in which the employee has at least five years of uninterrupted state service, is moving to the senior staff of another elected official, or is seeking election to a constitutional office. See § 36-14-5(o)(2), (3) & (4). Additionally, and most relevant to the instant matter, this statute expressly authorizes the Ethics Commission to allow an exception to the revolving door prohibition "where such exemption would not create an appearance of impropriety." Section 36-14-5(o)(5). We find that the unique circumstances presented fit squarely into this last exception.

Here, the Petitioner has had an instrumental role in the Governor's performance management initiative since its inception in 2011, and he has been working as the Governor's full-time Director of Performance Management since April 2012, prior to the General Assembly's creation of the OMB under the Department of Administration. The duties of the OMB's Director of Performance Management are essentially identical to the Petitioner's current duties as the Governor's Director of Performance Management. Given this background and the Petitioner's unique relationship with the performance management program, he is the natural and expected choice to continue leading it in the newly created OMB. We do not find any appearance of impropriety in these circumstances and, therefore, authorize the statutory exception to the revolving door prohibition of section 36-14-5(o).

Code Citations:

36-14-5(o)

Related Advisory Opinions:

A.O. 2010-53

A.O. 2010-49

A.O. 2009-16

A.O. 2003-50

Keywords:

Public Employment

Revolving Door