Advisory Opinion No. 2015-22

­Rhode Island Ethics Commission 

Advisory Opinion No. 2015-22

Approved: April 28, 2015

Re:  Lisa A. DiBello 


The Petitioner, a former member of the Charlestown Town Council, a municipal elected position, requests an advisory opinion regarding whether she may, within one year of leaving the Town Council, apply to the Town of Charlestown to be employed as its Director of Parks & Recreation.


It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former member of the Charlestown Town Council, a municipal elected position, may apply to the Town of Charlestown to be employed as its Director of Parks & Recreation, because the unique facts represented herein support the application of the exception to Commission Regulation 36-14-5014’s revolving door restrictions.

The Petitioner states that from 1988 until 2010 she served as the Town of Charlestown’s Director of Parks & Recreation.  The Petitioner states that her employment with the Town ended in May 2010 when, upon the recommendation of the Town Administrator, the Town Council voted to terminate her as Director of Parks & Recreation.  Following her termination, the Petitioner filed a charge of discrimination against the Town with the Rhode Island Commission for Human Rights and, subsequently, filed a wrongful termination suit against the Town in the Rhode Island Superior Court seeking reinstatement to her position and compensatory damages.

Shortly after her termination in 2010, the Petitioner ran for, and was elected to, a seat on the Charlestown Town Council for a term that ran from December 2010 to December 2012.  She was successfully reelected to the Town Council in 2012 for another two year term.  The Petitioner did not seek reelection in 2014 and, therefore, her service on the Town Council ended in December 2014.

In July 2014, the Petitioner requested an advisory opinion from the Ethics Commission asking whether the Code of Ethics would prohibit her from being reinstated to her position as Director of Parks & Recreation if such reinstatement were ordered by the court or resulted from a settlement of her lawsuit.  Specifically, the Petitioner asked whether such circumstances justified an exception to the Code of Ethics’ Municipal Official Revolving Door provisions contained in Commission Regulation 36-14-5014 (“Regulation 5014”), which generally prohibits municipal elected officials from seeking or accepting any type of employment from the municipality in which they serve as an elected official, while serving and for one year thereafter.  However, Regulation 5014 does permit the Ethics Commission to authorize an exception to the prohibition if it would not create an appearance of impropriety.

By letter dated July 8, 2014, the Ethics Commission staff notified the Petitioner that her question presented was too hypothetical to answer because there was no pending offer or order of reinstatement to her former position, and no indication that anyone’s consideration of reinstatement was conditioned upon the Ethics Commission’s prior approval.  The Petitioner was advised that she was free to renew her request “at an appropriate time when and if Ms. DiBello’s reinstatement is offered or ordered.” 

In October 2014, the Petitioner and the Town entered into an agreement to settle the Petitioner’s wrongful termination lawsuit and claims.  Pursuant to the terms of the settlement, the Town agreed to pay the sum of four hundred fifty thousand dollars ($450,000) to the Petitioner and her attorneys in full and final settlement of all claims.  The settlement did not include or require the Petitioner’s reinstatement to her prior position as Director of Parks & Recreation.

The Petitioner states that she recently learned that Charlestown’s incumbent Director of Parks & Recreation has resigned, and she expects that the Town will move quickly to fill the vacancy.  The Petitioner represents that the hiring process for this position will involve a selection by the Town Administrator that is subject to the ultimate approval of the Town Council.[1]  The Petitioner wishes to apply for this position, and she seeks this advisory opinion now to determine whether such application is barred by the Code of Ethics because it has been less than a year since she served on the Town Council.

Regulation 5014, entitled “Municipal Official Revolving Door,” generally prohibits a municipal elected official from leaving elective office in a city or town and then, within one year, seeking or accepting employment in that same city or town.  The provision reads as follows:

(a) No municipal elected official or municipal school committee member, whether elected or appointed, while holding office and for a period of one (1) year after leaving municipal office, shall seek or accept employment with any municipal agency in the municipality in which the official serves, other than employment which was held at the time of the official’s election or appointment to office or at the time of enactment of this regulation, except as provided herein.

(1) For purposes of this regulation, “employment” shall include service as defined in R.I. Gen Laws § 36-14-2(4) and shall also include service as an independent contractor or consultant to any municipality or municipal agency, whether as an individual or a principal of an entity performing such service.

(2) For purposes of this regulation, “municipal agency” shall include any department, division, agency, commission, board, office, bureau, authority, quasi-public authority, or school, fire or water district and any other agency that is in any branch of municipal government and exercises governmental functions other than in an advisory nature.

(b) Nothing contained herein shall prohibit a municipal elected official or municipal school committee member, whether elected or appointed, from seeking or being elected to any elective office.

(c) The Rhode Island Ethics Commission may authorize exceptions to this regulation where such exceptions would not create an appearance of impropriety.

Regulation 5014.  See A.O. 2013-11 (elected member of Pascoag Fire District Board of Commissioners could not seek or accept position as firefighter in the same district while holding office as Commissioner and for one year after); A.O. 2010-58 (member-elect of Providence City Council could continue his pre-existing legal representation of municipal agency after election, but could not accept any new representation of a city agency while serving and for one year after); A.O. 2008-23 (member of Johnston School Committee could not be appointed to Town’s towing list or perform auto body repair of Town vehicles, while serving on the School Committee and for one year after); but see A.O. 2007-3 (Charlestown Town Council member could retain his part-time employment as a custodian at the Charlestown Senior Center, a municipal employee position, because it was municipal employment held prior to his election to the Town Council).

Initially, it is important to note that the question presented in the instant request for an advisory opinion is substantially different than the question asked in the Petitioner’s prior request for advice.  In her July 2, 2014 letter, the Petitioner’s lawsuit was still pending and the question presented concerned how Regulation 5014 would apply if she were reinstated to her job by either a court order or through a settlement with the Town.  Such a posture (where an employee claims wrongful termination of her position, is actively challenging the termination at the time of her election to public office, and is ultimately reinstated to her position), would likely have been treated the same as if the Petitioner had been employed at the time of her election, since she would have been so employed but for her wrongful termination.  If so, then Regulation 5014 would not have barred the Petitioner’s reinstatement to her former position.

However, the Petitioner’s situation today is very different than it was in 2014 prior to the settlement.  Since the time of her initial letter to the Ethics Commission, the Petitioner voluntarily accepted a settlement with the Town that focused on compensatory damages in lieu of the equitable remedy of reinstatement.  For that reason, there is a break in the chain of the Petitioner’s employment with the Town that is, in some respects at least, voluntary.  We therefore cannot say that the Petitioner’s situation should be treated as if she held the position of Director of Parks & Recreation at the time of her election and through the present date.  Given this break in her employment, the general prohibition of Regulation 5014 clearly applies and the Petitioner will be prohibited from seeking employment with the Town for one year after leaving the Town Council unless the Ethics Commission authorizes an exception under Regulation 5014(c).  This exception only applies upon a finding that, under the circumstances, allowing the Petitioner to apply for her former position would not create an appearance of impropriety.

After considering the Petitioner’s representations relative to her claims against, and settlement with, the Town, we find that that the Petitioner’s application to the Town for the position of Director of Parks & Recreation would not create an appearance of impropriety and she is, therefore, entitled to the exception set forth in Regulation 5014(c).  The Respondent held her former position for twenty-two (22) years until she was terminated in 2010.  The Petitioner immediately challenged her termination as wrongful and discriminatory before the Rhode Island Commission for Human Rights and the Superior Court.  At the time of the settlement of her claims in 2014, her former position of Director of Parks and Recreation had already been filled by another person, leaving the option of reinstatement problematic.  The Petitioner did not seek reelection in 2014, and has been out of office for all of 2015. 

We caution, however, that this advisory opinion only permits the Petitioner to apply for the position of Director of Parks & Recreation.  The Town is under no obligation to offer the position to the Petitioner.  If the position is offered then, as is set forth in footnote 1 herein, the Petitioner may not accept the offer within one year of her severance from the Town Council unless she receives another advisory opinion from the Ethics Commission granting relief from Regulation 5006.

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:

Regulation 36-14-5006

Regulation 36-14-5014

Related Advisory Opinions:

A.O. 2013-11

A.O. 2010-58

A.O. 2008-23

A.O. 2007-3


Revolving Door

[1] This hiring process, involving the Town Council’s ultimate approval, is also a fact that was not raised in the Petitioner’s initial July 2014 request for an advisory opinion.  The hiring process is critical because it implicates another provision of the Code of Ethics, Regulation 36-14-5006 (“Regulation 5006”), which prohibits a person from accepting public employment that requires approval by the body of which 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 her membership on such body.  Unlike Regulation 5014, which allows for an exception if the Commission finds there would be no appearance of impropriety, the only exception applicable to Regulation 5006 requires the Ethics Commission to determine “that denial of such employment or position would create a substantial hardship for the body, board, or municipality.”  Even if we determine in the instant advisory opinion that the Petitioner is permitted under Regulation 5014 to seek employment with the Town, Regulation 5006 will require her to return to the Ethics Commission for another opinion to determine whether she may accept the position under Regulation 5006’s hardship exception.  That exception can only be granted if the Commission finds that the Town, not the Petitioner, would suffer a hardship if the Petitioner is not permitted to accept the position.