Advisory Opinion No. 2014-18 Rhode Island Ethics Commission Advisory Opinion No. 2014-18 Approved: June 17, 2014 Re: W. Keith Burlingame, Esq. QUESTION PRESENTED: The Petitioner, a member of the Rhode Island Fire Safety Code Board of Appeal and Review, a state appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from accepting an appointment to serve as the Executive Director of the Rhode Island Fire Safety Code Board of Appeal and Review. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Rhode Island Fire Safety Code Board of Appeal and Review, a state appointed position, is not prohibited by the Code of Ethics from accepting an appointment to serve as the Executive Director of the Rhode Island Fire Safety Code Board of Appeal and Review, based upon a finding that the facts represented herein indicate that the denial of such permission would create a substantial hardship to the Rhode Island Fire Safety Code Board of Appeal and Review. The Petitioner is a member of the Rhode Island Fire Safety Code Board of Appeal and Review (“Board”), having served from 1995 to 2007 and most recently since 2011. The Board is a body of eleven (11) members, all of whom are appointed by the Governor with the advice and consent of the Senate, to serve in unpaid positions. The Petitioner represents that he was appointed as a public member of the Board.[1] He informs that the Board generally holds weekly meetings where it sits as an adjudicatory body, reviewing fire code enforcement decisions made by local and state fire marshals and applications for variances from strict compliance with the fire code. He represents that the Board also develops and administers the state’s comprehensive fire code and provides the State Fire Marshall, state agencies, and more than eighty (80) fire departments with legal and technical advice. The Petitioner informs that the Board has a three (3) person staff comprised of an Executive Director (who also serves as legal counsel), a Deputy Director and an Administrative Assistant. He states that Board’s administrative operations and personnel fall under the jurisdiction of the Department of Administration (“DOA”). He represents that the Executive Director position has been vacant since December 2013. He states that he has been voluntarily performing the administrative duties of the Executive Director during this vacancy while an attorney from DOA’s Division of Legal Services has been serving as legal counsel. He further informs that the Board’s current Deputy Director is retiring as of June 6, 2014. In his private capacity, the Petitioner represents that he is licensed attorney in the state of Rhode Island and he is very familiar with the fire and building codes having served on the Board for many years in addition to working in the fire safety industry, formerly as a firefighter and as a fire chief in Rhode Island and currently as a fire safety consultant. The Petitioner states that he applied for the position of Executive Director to the Board, which was posted on April 9, 2014. The job specifications for this classified position provide that the Executive Director must have the following qualifications: A thorough knowledge of the pertinent provisions of the State Fire Safety Code and the ability to interpret said provisions; a thorough knowledge of the Administrative Procedures Act; a working knowledge of state and local legislative matters pertaining to codes and ordinances; the ability to represent the Board before various courts; the ability to moderate administrative hearings and to examine and cross-examine witnesses within appropriate legal boundaries; and related capacities and abilities. Finally, the Executive Director must be a member of the Rhode Island Bar. A letter from Dana M. Newbrook, Chairman of the Board, is attached to the Petitioner’s request for an advisory opinion. Mr. Newbrook represents that the Executive Director position was advertised for two (2) weeks on the Department of Labor & Training’s website for vacant state positions, and notices were also sent to several professional organizations, including the Rhode Island Bar Association. He states that the Board received four (4) applications, one (1) of which was immediately disqualified because the applicant was not an attorney. He informs that the remaining three (3) applicants, including the Petitioner, were interviewed on May 4, 2014, by himself, four (4) other members of the Board and a representative of the Department of Human Resources. Mr. Newbrook informs that he selected ten (10) questions to be asked of each candidate during the interview process regarding their education and experience, technical knowledge of the fire and building codes, and experience in a supervisory position.[2] He represents that the selection committee unanimously voted to hire the Petitioner, who exceeded all of the criteria and was the only qualified candidate for the position. He states that the other two (2) candidates were found to be unqualified because they had no experience practicing law in the areas of fire and building codes or with administrative practices and procedures and, therefore, they would not have been hired for the Executive Director position. At the present time, the Petitioner has been offered the position of Executive Director to the Board. He seeks an advisory opinion to determine if the Code of Ethics prohibits him from accepting this position. If he is permitted to accept the position as Executive Director he states that he will resign from his position as a member of the Board. The Petitioner represents that he had no involvement in the hiring process for this position. The central issue here is whether and under what circumstances a member of a state board may accept an offer of employment from his own board. This issue implicates Commission Regulation 36-14-5006 (“Regulation 5006”), entitled “Employment From own Board,” one of the so-called “revolving door” provisions of the Code of Ethics. It generally prohibits elected and appointed officials from accepting paid employment or appointment that is offered by or through their own board or elective body until one year after the termination of their membership on that board. Regulation 5006 provides: 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. As an initial matter, we must first determine if the provisions of Regulation 5006 are implicated by the Petitioner accepting the Chairman’s appointment to serve as Executive Director of the Board. Regulation 5006 applies to any appointment that requires approval by the body of which the Petitioner is a member. The appointment process set forth in Rhode Island General Laws § 23-28.3-2(c) identifies the Chairman of the Board, Mr. Newbrook, as the appointing authority for the Executive Director. Mr. Newbrook represents that he and four (4) other Board members interviewed the three (3) applicants and unanimously agreed that the Petitioner was the best candidate for the position. Furthermore, even if the entire hiring process was solely conducted by the Chairman, a single member of the Board, the approval of the Petitioner’s colleague and fellow Board member is still required. Therefore, we believe that Regulation 5006 is implicated here, consistent with the general purpose of Regulation 5006 and the Code’s other revolving door provisions. However, Regulation 5006 provides for a single exception to its prohibition if the Ethics Commission finds that the denial of such employment or position would create a substantial hardship for the government body, board or municipality, in contrast to § 36-14-5(e) which considers whether there is a hardship to the public official. The Commission has previously determined that a substantial hardship to the government body existed in cases where, for example, some of the following circumstances occurred: after publicly advertising the position, there was complete absence of any other applicants or a lack of other qualified candidates to fill the position; the position required very specific and unique skills and qualifications; the board member had no involvement in the hiring process or in the drafting of the request for proposals (“RFP”); the position had been vacant for a substantial period of time; and whether the employment was a temporary measure or was intended to be permanent. The key issue, however, in determining if a substantial hardship to the government body exists is not whether the Petitioner is the most qualified candidate but, rather, whether other qualified candidates are currently available or may become available through a second posting of the position. 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 that he applied for, which was intended to be permanent. After publicly advertising the position and interviewing candidates, the petitioner was selected as the first choice of two (2) 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 2012-31, the Commission opined that a South Kingstown Historic District Commission (“HDC”) member could be hired by the Town of North Kingstown to create a guidebook for homeowners in the Town’s historic districts, based upon a finding of substantial hardship to the Town and the HDC, because: 1) the Town publicly advertised the position through its normal public bid procedures, in addition to specifically contacting five (5) local qualified historic preservation planners identified by the Rhode Island Historical Preservation and Heritage Commission; 2) the Petitioner was the only applicant; 3) only a small number of firms and individuals in the region possessed the qualifications required to complete this project; 4) the contract was limited to a six-month duration; and 5) the project was funded by grant money which was only available until August 2013, leaving no time to re-issue the RFP. See also A.O. 2000-32 (opining that a member of the East Providence Carousel Commission could seek and accept employment from the Carousel Commission as Manager of the City’s Carousel, based upon the fact that the Carousel Commission had twice published advertisements for the position and did not receive any qualified applications, as well as a represented history of failure to attract and keep qualified persons in the position); 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 (6) 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 Executive Director position). In contrast, the Commission has declined to grant an exception if there was no evidence of hardship to the body, board or municipality, or if the board member participated in drafting the RFP or job specifications. See A.O. 2010-10 (opining that an East Providence Historic District Commission member (“EPHDC”) was prohibited from bidding on a contract to survey the Phillipsdale area of the City in support of nominating it to the National Register as a historic district because there was no evidence of hardship, the petitioner’s board had a substantial role in drafting the RFP, and an EPHDC member served on the planning department committee overseeing the all aspects of the survey); 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, was prohibited from accepting employment with the Water Resources Board while serving as the Director’s designee and for one (1) year thereafter because there was no evidence of hardship to the Water Resources Board); A.O. 2000-4 (opining that the Executive Director of the Rhode Island State Council on the Arts was prohibited from accepting an appointment as the State Poet, a position managed and administered by the Council, given that the position carried with it an honorarium funded by the Council and there was no evidence of hardship to the Council). Because a “substantial hardship,” if found, must be experienced by the public body rather than by the public official, it is appropriate and necessary to consider the representations of Mr. Newbrook, the Chairman of the Board, in support of the Petitioner’s request. First, Mr. Newbrook represents that the Petitioner was the only qualified candidate because he was the only candidate who possessed the requisite experience with the fire and building codes essential to the operations of the Board. He informs that the position was publicly advertised on the state’s job vacancy website in addition to being sent to several professional organizations including the Rhode Island Bar Association. He represents that the Petitioner’s service and dedication to the Board has been exceptional, noting the Petitioner’s assistance in revising and creating the latest edition of the fire code, and sharing his expertise and historical knowledge of many sections of the fire code. He further states that since January 2014, the Petitioner has, as an unpaid volunteer Board member, been recording the hearings and writing decisions for the Board while the position of Executive Director has been vacant. Finally, he states that the Board’s Deputy Director is also retiring, leaving two (2) of the three (3) positions on the Board’s staff vacant. In the present matter, the Petitioner is a licensed attorney with extensive experience with the state’s fire code having served on the Board for fifteen (15) years in addition to working in the fire safety industry formerly as a firefighter and as a fire chief in Rhode Island and currently as a fire safety consultant. The Petitioner had no involvement in the process to hire the Executive Director. The Executive Director is a unique position in that the person must be a licensed attorney with administrative law experience and extensive familiarity with fire and building codes. For all of these reasons, we find that prohibiting the Petitioner from accepting the position of Executive Director to the Board would create a substantial hardship to the Board. The Commission bases this finding on specific representations made by the Petitioner and Mr. Newbrook: 1) the Petitioner was the only qualified candidate; 2) the Board has a three (3) person staff and the Executive Director position has been vacant for six (6) months and the Deputy Director position will be vacant as of June 2014; 3) the Petitioner is uniquely familiar with the responsibilities of the Executive Director which will ensure the continued functioning of the Board given the timing of these vacancies; 4) the Petitioner had no involvement in the hiring process, which was done through an open and public process; 5) the Petitioner will resign from his position on the Board; 6) the Board must hire someone who meets the qualifications set forth in the job specification for the classified position of Executive Director (Fire Safety Code Board of Appeal & Review); and 7) the fire code is a particularly complex and voluminous set of statutes, rules and regulations that since 2003 has been expanded to apply to both new construction and pre-existing structures. Accordingly, it is the opinion of the Rhode Island Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from accepting an appointment to serve as the Executive Director of the Rhode Island Fire Safety Code Board of Appeal and Review, based upon a finding that the facts represented herein indicate that the denial of such permission would create a substantial hardship to the Rhode Island Fire Safety Code Board of Appeal and Review. 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(e) Commission Regulation 36-14-5006 Related Advisory Opinions: A.O. 2012-31 A.O. 2010-10 A.O. 2006-1 A.O. 2004-36 A.O. 2000-32 A.O. 2000-4 A.O. 95-118 Other Relevant Law: R.I. Gen. Laws §§ 23-28.3-1 to -11 Keywords: Hardship Exception Revolving Door