Advisory Opinion No. 2015-41 Rhode Island Ethics Commission Advisory Opinion No. 2015-41 Approved: September 22, 2015 Re: Christopher M. Botelho QUESTION PRESENTED: The Petitioner, a Principal Management and Methods Analyst at the Executive Office of Health and Human Services, Medicaid Division, a state employee position, requests an advisory opinion concerning whether the Code of Ethics prohibits him from accepting employment at Lifespan, Miriam Hospital as the Ryan White Grant Program Coordinator. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a Principal Management and Methods Analyst at the Executive Office of Health and Human Services, Medicaid Division, from accepting employment at Lifespan, Miriam Hospital as the Ryan White Grant Program Coordinator. However, the Code of Ethics does prohibit the Petitioner from representing his new employer before the Executive Office of Health and Human Services for a period of one year after leaving his state employment. The Petitioner states that on June 3, 2013, he began working as a Program Assistant at the Rhode Island Executive Office of Health and Human Services (“EOHHS”) through a temporary employment agency, Colony Personnel. As such, the Petitioner was not a state employee. As a Program Assistant, the Petitioner was assigned by EOHHS to work in the Ryan White Program. The Ryan White Program is a federally funded program that works with cities, states and local community-based organizations to provide services and medications to people who do not have sufficient resources to cope with HIV disease. Part B of the Ryan White Program provides federal grants to U.S. states and territories to improve the quality, availability and organization of HIV/AIDS health care and support services. Among its many duties relative to the Ryan White Program, EOHHS prepares requests for proposals (RFPs), reviews responses to RFPs, awards grants and contracts, and monitors the programs offered by service providers. The Petitioner’s duties at EOHHS in the Ryan White Program included editing RFPs, preparing contracts for signature, tracking expenditures for contracts, assisting in facilitation of community groups, grant writing and general clerical tasks. The Petitioner also became involved in data evaluation, analyzing data provided by the program’s direct service providers and submitting annual federal reports using such data. On May 31, 2015, the Petitioner became a full-time state employee at EOHHS in the Ryan White Program as a Principal Management and Methods Analyst. His responsibilities included his prior service provider data and evaluation duties, and also included new quality management duties. Throughout the Petitioner’s tenure at EOHHS he has been involved in the review of bids and proposals from service providers and in the monitoring of service provider adherence to terms. The Petitioner states that he did not have a role in scoring proposals, and did not have decision-making authority over the award of contracts. The Petitioner represents that he recently applied for and was offered employment at Lifespan, Miriam Hospital (“Miriam”), an EOHHS service provider in the Ryan White Program, as Miriam’s Ryan White Grant Program Coordinator. He relates that the position was publicly posted on Miriam’s website. The Petitioner’s duties at Miriam would include, among other things: submitting reports necessary to maintain grant funding; maintaining records for claim submission and reimbursement, communicating with state agencies regarding grant funded services; seeking opportunities for program development; preparing and submitting payroll; meeting with federal, state and other representatives to resolve billing issues; assisting in budget preparation; reviewing changes in federal and state grant guidelines and regulations; assuring transmission of performance reports and documentation; assisting in writing grant proposals; coordinating grant activities; and preparing for site visits from state and federal authorities. The Petitioner also particularly notes that he would be attending Quality Control meetings with EOHHS personnel and participating in the EOHHS Provision of Care Planning Body. Cognizant that the Code of Ethics contains certain revolving door restrictions for public officials and employees, the Petitioner seeks guidance as to whether the Code prohibits or in any way limits his proposed employment at Miriam. Section 5(e) of the Code of Ethics prohibits public officials and employees from representing themselves or other persons or organizations before a state or municipal agency of which they are a member or by which they are employed. [1] R.I. Gen. Laws § 36-14-5(e)(1) & (2). This prohibition continues while the official or employee remains in public office and for a period of one year thereafter. Section 36-14-5(e)(4). See A.O. 2008-46 (section 5(e) prohibits Department of Environmental Management (“DEM”) employee from retiring and taking a position in the private sector that would require him to report to and regularly interact with the DEM); A.O. 2008-30 (former Program Manager for Assisted Living Residences in Rhode Island, and Chief of Compliance for the Rhode Island Department of Health (“DOH”), may work as a per diem pharmacist at Rhode Island Hospital provided that he does not represent himself, the hospital, or anyone else, or act as an expert witness, before the DOH until one year has passed since his severance from state service); A.O. 2001-26 (Governor’s former Chief of Staff may not represent his new employer before the Governor’s office or any other executive branch agency for one year). Section 5(e)’s prohibitions are designed to minimize any undue influence that a former public official or employee may have over his former agency and colleagues by reason of his employment or service there. Interactions with a former agency that do not involve agency decision-making, but that are ministerial in nature, are not prohibited. See A.O. 98-5 (DHS Casework Supervisor in the East Providence Long Term Care Unit could accept private employment that may involve contact with the DHS so long as contact with East Providence Long Term Care Unit is ministerial in nature for a period of one-year from the date of separation). In addition to section 5(e)’s post-employment restrictions, sections 36-14-5(b), (c) and (d) of the Code of Ethics prohibit the use and/or disclosure of confidential information acquired by an official or employee during the course of or by reason of his official employment, particularly for the purpose of obtaining financial gain. In the present case, the initial representations made by the Petitioner in his letter requesting the instant advisory opinion disclose that his new position at Miriam may involve substantial interaction with his former agency, EOHHS, and with his colleagues there. Such interactions, which appear to amount to representing Miriam before the EOHHS, include but are not limited to: participating in site visits from EOHHS representatives; attending meetings with EOHHS personnel; communicating with EOHHS regarding grant funded services; and working with EOHHS to resolving billing or capitation or to discuss the interpretation of regulations. If these duties were a required or necessary part of the Petitioner’s employment by Miriam, then he would be prohibited from entering into such employment by section 5(e). However, in subsequent telephone conversations the Petitioner has advised that after consulting with Miriam he will not be required to represent Miriam’s interests before EOHHS for at least one year following his severance from EOHHS. We do not know whether such a limitation on his previously listed duties is feasible, but in the context of an advisory opinion the Ethics Commission will rely on a Petitioner’s good faith representations. Our regulations specify that advisory opinions “are based upon the representations made by, or on behalf of the person or entity requesting the opinion, and are not the result of adversary or investigative proceedings.” Commission Regulation 1024(g). For that reason, this opinion and advice is only binding upon the Ethics Commission to the extent that representations have been made in good faith, and provided that no material facts have been omitted or misstated. Commission Regulation 1024(f). Based on the Petitioner’s representations that he will not represent Miriam before EOHHS, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from leaving his employment at EOHHS and accepting employment at Miriam. The Petitioner must not disclose to Miriam any confidential information he acquired by reason of his public employment. Furthermore, the Petitioner is expressly prohibited by section 5(e) of the Code of Ethics from representing Miriam before EOHHS for a period of one year after leaving his public employment. We have provided a non-exclusive list of interactions that would likely amount to a prohibited representation. The Petitioner must be diligent in identifying and avoiding these and any other prohibited interactions with EOHHS during the one-year period following his termination of employment there. Any act of representing Miriam before EOHHS will likely result in a violation of section 5(e) of the Code of Ethics. If in doubt, the Petitioner is instructed to seek further guidance from the Ethics Commission. 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(12) & (13) 36-14-5(b) 36-14-5(c) 36-14-5(d) 36-14-5(e) Regulation 1024 Related Advisory Opinions: A.O. 2008-48 A.O. 2008-30 A.O. 2001-26 A.O. 98-5 Keywords: Post-employment Revolving door