Advisory Opinion No. 2013-3 Advisory Opinion No. 2013-3 Re: Robert C. Schultz, Jr., PE, PLS QUESTION PRESENTED: The Petitioner, the Deputy Utilities Director – Engineering for the City of Newport, a municipal employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from representing the City of Newport before the Rhode Island Department of Health, given that he was previously employed by the Rhode Island Department of Health. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Deputy Utilities Director – Engineering for the City of Newport, a municipal employee position, is not prohibited by the Code of Ethics from representing the City of Newport before the Rhode Island Department of Health, notwithstanding that he was previously employed by the Rhode Island Department of Health. The Petitioner recently began working for the City of Newport (“City”) as its Deputy Utilities Director – Engineering for the Department of Utilities on December 10, 2012. He was previously employed from April 2009 until December 7, 2012, as a Senior Sanitary Engineer in the Division of Drinking Water Quality at the Rhode Island Department of Health (“DOH”). The Petitioner informs that, under direction of the Director of Utilities, his duties include: planning and directing the activities of the Water Division, supervising the staff of the Water Division, and overseeing the contractual obligations for the Water Pollution Control Division. He represents that the Water Division is responsible for providing drinking water that meets standards established by the United States Environmental Protection Agency and DOH. Cognizant of the Code of Ethics’ prohibition on representing himself or another person before his former agency within the one year period after he severed his position with that agency, the Petitioner seeks advice as to whether, given DOH’s regulatory authority over drinking water, he may appear before DOH on behalf of the City’s Department of Utilities. A person subject to the Code of Ethics is prohibited from representing himself or any other person before any state or municipal agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1). This prohibition continues for a period of one year after the person subject to the Code has officially severed his position with his state or municipal agency. Section 36-14-5(e)(4). A “person” is defined as an individual or business entity. Section 36-14-2(7). A “business” is defined as a “sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, trust or any other entity recognized in law through which business for profit or not for profit is conducted.” Section 36-14-2(2). This Commission has previously opined that state and municipal agencies are not considered “businesses” or “business associates” as those terms are defined in the Code of Ethics. See A.O. 2012-1 (opining that a member of both the Rhode Island Transportation Advisory Committee (“TAC”) and the Rhode Island Board of Governors for Higher Education (“Board”) could participate in TAC matters concerning funding for the institutions under the jurisdiction of the Board, because neither public entity was considered a business under the Code and, therefore, she was not a business associate of either public entity); A.O. 2008-50 (opining that the Rhode Island State Veterinarian, an employee of the Division of Agriculture, was not inherently prohibited by the Code from serving as an adjunct professor at URI, notwithstanding the fact that the two roles may intersect, as neither the Division of Agriculture nor URI were “businesses” as defined by the Code and, thus, the petitioner’s relationships with those entities were not “business associations”); A.O. 2002-55 (opining that the term “business” as used in the Code of Ethics does not include public entities such as the Town of Richmond). In the present matter, the Petitioner seeks to represent the City’s Department of Utilities, a municipal agency, before his former employer, DOH, within one year of his official severance from DOH. Section 5(e)(4) prohibits the Petitioner from representing a “person” before DOH until December 7, 2013. A “person” is an individual or a business entity. Section 36-14-2(7). The City’s Department of Utilities is a municipal agency, which is neither an individual nor a business entity as the term is defined in the Code. Therefore, section 5(e)’s prohibition does not apply to the instant set of facts because the Petitioner seeks to represent a municipal agency, which is not a “person,” before his former agency. Accordingly, it is the opinion of the Ethics Commission that the Petitioner, the Deputy Utilities Director – Engineering for the City of Newport, is not prohibited by the Code of Ethics from representing the City’s Department of Utilities before DOH, notwithstanding that he was previously employed by DOH. Code Citations: § 36-14-2(2) § 36-14-2(7) § 36-14-5(e) Related Advisory Opinions: A.O. 2012-1 A.O. 2008-50 A.O. 2002-63 A.O. 2002-55 Keywords: Public Employment Revolving Door