Advisory Opinion No. 2015-37 Rhode Island Ethics Commission Advisory Opinion No. 2015-37 Approved: September 22, 2015 Re: Scott Millar QUESTION PRESENTED: The Petitioner, the former Administrator of Sustainable Watersheds for the Rhode Island Department of Environmental Management, a state employee position, requests an advisory opinion regarding whether the Code of Ethics restricts his private employment at Grow Smart Rhode Island, a private nonprofit organization, in the year following his retirement from state employment. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the former Administrator of Sustainable Watersheds for the Rhode Island Department of Environmental Management, a state employee position, who has accepted private employment at Grow Smart Rhode Island, is restricted by the Code of Ethics from: 1) representing Grow Smart or any other person or entity before his former state agency for a period of one year following his official date of severance from state employment; and 2) disclosing any confidential information that he may have obtained during the course of his state employment. The Petitioner retired from his position as the Administrator of Sustainable Watersheds (“Administrator”) at the Rhode Island Department of Environmental Management (“DEM”) on August 31, 2015. He represents that he had been a state employee since 1980, working at DEM since 1992, and in his most recent position as Administrator for the last fifteen years. He represents that his duties as Administrator focused on policy and land-use planning guidance and included providing training and guidance to local officials on how communities can use their land-use authority to avoid and reduce adverse impacts from development on natural resources. He informs that he managed the development of numerous guidance manuals and training programs for both community officials and developers. He states that as Administrator he did not have any regulatory authority. The Petitioner further informs that, as Administrator, he supervised the manager of the Narragansett Bay National Estuarine Research Reserve (“Reserve”), which is a state/federal partnership between DEM, the National Oceanic and Atmospheric Administration and the Audubon Society of Rhode Island, a private nonprofit organization. He represents that the Reserve works to preserve, protect and restore coastal and estuarine ecosystems of Narragansett Bay through long-term research, education and training. The Petitioner represents that he has accepted a part-time position as a senior policy analyst with Grow Smart Rhode Island (“Grow Smart”), a nonprofit public interest group that works to achieve: revitalized, walkable urban and town centers; housing options and affordability; expanded transportation choices; a vital agricultural sector; and responsible stewardship of natural resources. The Petitioner informs that his responsibilities will include leading Grow Smart’s efforts to strengthen the state’s agricultural sector and food system, as well as providing trainings to local officials relative to regulating agriculture in a reasonable and user-friendly manner. He states that he will also represent Grow Smart before two non-governmental organizations (“NGOs”), the Rhode Island Food Policy Council (“Food Council”) and the Rhode Island Agricultural Partnership (“Agricultural Partnership”), and that he may serve as a member of the Food Council. He informs that both the Food Council and the Agricultural Partnership are NGOs and are not part of state government or under the authority of DEM. Cognizant of the Code of Ethics, the Petitioner states that he will not represent Grow Smart or any other person or entity before DEM for one year following his retirement. He further states that he will not use or disclose any confidential information that he may have acquired while employed at DEM. However, the Petitioner seeks advice as to his interactions on behalf of Grow Smart with both the Food Council and the Agricultural Partnership, because DEM’s Chief of the Division of Agriculture, Kenneth Ayars, is a member of the Food Council and an advisor to the Agricultural Partnership. The Code of Ethics prohibits a public official or employee from representing himself, or any other person as their attorney or as an expert witness 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), (2) & (3).[1] Section 36-14-5(e)(4) extends this prohibition for a period of one year after the public official or employee has officially severed his position with the state or municipal agency, and it applies to the entire agency, including all of its offices, sections, programs or divisions. This “revolving door” provision in intended to minimize any influence the former public official or employee may have in a matter before his former agency. Additionally, the Code of Ethics prohibits the use and/or disclosure of confidential information acquired by a public official or employee during the course of, or by reason of, his official employment, particularly for the purpose of obtaining financial gain. See § 36-14-5(b), (c) & (d). The Commission has issued numerous advisory opinions interpreting section 5(e)(4)’s requirements with respect to former state employees interacting with their former agency during the one year following the date of severance from state employment. See, e.g., A.O. 2013-34 (opining that the former Chief of Groundwater and Wetlands Protection at DEM was not prohibited by the Code of Ethics from accepting employment with an environmental science and engineering firm during the year following his severance from public employment, provided that he did not represent the firm or its clients before his former agency during that year); A.O. 2012-12 (opining that a former senior environmental scientist at DEM was not prohibited by the Code of Ethics from working for the Rhode Island Natural Resources Conservation Service upon his retirement, provided that he did not enter into contracts with farmers that he had interacted with as part of his official duties at DEM for a period of one year following his official date of severance, and he did not disclose confidential information that he might have obtained during the course of his state employment); A.O. 2008-62 (opining that a former social caseworker in the Long Term Care Unit within the Department of Human Services (“DHS”), while not prohibited from working as an independent contractor with an attorney whose practice consists of filing medical assistance applications on behalf of his clients with DHS, must avoid any direct contact with DHS, and refrain from appearing before DHS or any of its members or staff, for a period of one year after the date of her official severance from her position). See also A.O. 2010-23; A.O. 2008-6; A.O. 2008-2; A.O. 2006-42; A.O. 2005-54; A.O. 2003-43; A.O. 2001-33. In the present matter, the Petitioner retired from DEM on August 31, 2015, and he has accepted a part-time position at Grow Smart as a senior policy analyst, working to strengthen the state’s agricultural sector and food system. He states that he will not represent Grow Smart or any other person or entity before DEM for one year following his retirement. He further states that he will not use or disclose any confidential information that he may have acquired while employed at DEM. He represents that his duties at Grow Smart will require him to appear before, and potentially serve as a member of, the Food Council and the Agricultural Partnership, two NGOs that are not part of state government. The fact that Mr. Ayars, DEM’s Chief of the Division of Agriculture, is also affiliated with the Food Council and the Agricultural Partnership does not transform those NGOs into DEM agencies. Therefore, the Code of Ethics does not restrict the Petitioner’s interaction and/or membership, on behalf of Grow Smart, with the Food Council and the Agricultural Partnership. For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner, having retired from DEM and accepted private employment at Grow Smart, is restricted by the Code of Ethics from: 1) representing Grow Smart or any other person or entity before DEM for a period of one year following his official date of severance from state employment; and 2) disclosing any confidential information that he may have obtained during the course of his state employment. 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: § 36-14-2(7) § 36-14-5(b) § 36-14-5(c) § 36-14-5(d) § 36-14-5(e) Commission Regulation 36-14-5016 Related Advisory Opinions: A.O. 2013-34 A.O. 2012-12 A.O. 2010-23 A.O. 2008-62 A.O. 2008-6 A.O. 2008-2 A.O. 2006-42 A.O. 2005-54 A.O. 2003-43 A.O. 2001-33 Keywords: Post Employment Private Employment Revolving Door [1] A public official or employee will “represent him or herself before a state or municipal agency” if: “He or she participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of the agency in his or her own favor.” Commission Regulation 36-14-5016(a)(1) (“Regulation 5016”). A public official or employee will “represent any other person before a state or municipal agency” if that person acts as another person’s attorney in the presentation of evidence or arguments before that agency, or as an expert witness before that agency. Regulation 5016(b)(1) (attorney) & Regulation 5016(b)(2) (expert witness). A “person” is defined as “an individual or business entity.” Section 36-14-2(7).