Advisory Opinion No. 2015-43 Rhode Island Ethics Commission Advisory Opinion No. 2015-43 Approved: October 20, 2015 Re: Sheila M. McGauvran, P.E. QUESTION PRESENTED: The Petitioner, a member of the North Kingstown School Committee, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from applying for and accepting, if offered, the position of North Kingstown Town Manager. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the North Kingstown School Committee, a municipal appointed position, is not prohibited by the Code of Ethics from applying for and accepting, if offered, the position of North Kingstown Town Manager because the unique facts represented herein support the application of the exception to Commission Regulation 36-14-5014’s revolving door restrictions. The Petitioner is a member of the North Kingstown School Committee (“School Committee”), having been appointed by the North Kingstown Town Council (“Town Council”) on February 18, 2015, to fill a vacancy. The Town Clerk, Jeannette Alyward, represents that this vacancy was the result of the disqualification of a previously elected member of the School Committee.[1] Ms. Alyward states that the North Kingstown Town Charter (“Charter”) sets forth the procedure for filling a School Committee vacancy: In the event that the office of a member of the school committee shall become vacant from any cause, such vacancy shall be filled by the town council by appointing thereto the school committee candidate who, in the most recent general election, received the highest number of votes among the unsuccessful candidates in said election. If such candidate declines appointment, has ceased to meet the qualifications for school committee, or is otherwise not available, the council shall appoint another qualified elector of the town to fill the vacancy. In any event, such vacancy shall be filled by the town council within thirty (30) days. Charter § 903. Ms. Alyward informs that in the 2014 general election there were three candidates for the two open School Committee positions. She states that the only unsuccessful candidate had formally withdrawn her candidacy prior to the election but it was too late to remove her name from the ballot. Therefore, the Town Council needed to appoint another qualified elector of the Town and it appointed the Petitioner to fill the vacancy. Ms. Alyward represents that the Town Manager for the Town of North Kingstown (“Town”) has recently retired. She states that Town has begun a search for a new Town Manager and has hired a consultant to handle the receipt and initial review of the job applications. She informs that applications for the Town Manager position are due by November 13, 2015. She states that the Town’s consultant will make recommendations to the Town Council, which will then select candidates to interview. She further states that a citizen panel may also interview the candidates followed by final Town Council interviews. She informs that the authority to select and hire the Town Manager is vested in the Town Council. Charter § 501. The Petitioner represents that she would like to apply for the position of Town Manager. She informs that she has a Bachelor of Science in civil and environmental engineering and a Master of Public Administration, in addition to more than twenty-five years of work experience for municipalities in Rhode Island, specifically Coventry, Providence and Woonsocket. She states that for the last two years she has been the president of a small consulting engineering firm that she operates out of her home. Cognizant of the Code of Ethics’ revolving door restrictions, the Petitioner asks the Ethics Commission to consider granting her an exception pursuant to Commission Regulation 36-14-5014(c) (“Regulation 5014”). She states that she was contacted by a friend who asked her to consider submitting her name to the Town Council to fill the unexpected School Committee vacancy. She informs that, after some consideration, she sent her resume to the Town Council and was soon appointed to the School Committee. She represents that she has no intentions to run for election to the School Committee when her term is over. She further represents that if hired for the position of Town Manager, she would resign from the School Committee and would no longer operate her private business. Regulation 5014, entitled “Municipal Official Revolving Door,” generally prohibits a municipal school committee member from seeking or accepting employment in that same city or town while serving and for one year after leaving public office. The provision reads as follows: (a) No municipal elected official or municipal school committee member, whether elected or appointed,[2] 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. Here, the general prohibition of Regulation 5014(a) clearly applies and the Petitioner will be prohibited from seeking or accepting employment with the Town while serving on the School Committee and for one year after her service on the School Committee ends, unless the Ethics Commission authorizes an exception under Regulation 5014(c). This exception only applies upon a finding by the Ethics Commission that, under the circumstances, allowing the Petitioner to apply for the Town Manager position would not create an appearance of impropriety. The Commission has granted a Regulation 5014(c) exception twice within the past two years to two former Town Council members who sought employment with the Town in which they served less than one year after leaving office. See A.O. 2015-22 (granting a Regulation 5014(c) exception to a former Charlestown Town Council member and permitting her to apply for the position of Charlestown Director of Parks & Recreation, a position which she previously held for twenty-two years until she was terminated in 2010, given that she immediately challenged her termination as wrongful, filed suit and favorably settled the case, but at the time of settlement reinstatement was problematic because the position had already been filled by another person); A.O. 2014-5 (granting a Regulation 5014(c) exception to a former New Shoreham Town Council member and permitting his business to bid on new contracts through an open and public bidding process for services that it then performed, given that his business had been providing these municipal services for at least ten years, this business was his primary source of income, his representation that he would not have sought election to the Council if he had anticipated this problem, and he immediately resigned when he learned of this conflict). In the present matter, the Petitioner has come before the Commission asking for an exception to Regulation 5014’s revolving door restrictions to permit her to apply for the Town Manager vacancy and accept the position if it is offered to her. The Petitioner did not run for election to the School Committee but, rather, volunteered to be appointed to the School Committee to fill an unexpected vacancy. She represents that she does not intend to seek election to the School Committee once her term expires. She states that she is currently operating a small consulting engineering firm but would prefer to be employed in the public sector again. According to the Petitioner’s resume, which was attached to her advisory opinion request letter, she possesses the relevant experience and education that would be generally associated with the position of Town Manager. She informs that if hired as the Town Manager, she would resign from the School Committee and no longer operate her private business. Furthermore, the School Committee has no role or authority relative to the hiring process for the Town Manager position. Finally, the Town Manager is not a subordinate position to the School Committee and operates separate and apart from the Town’s School Department. Under these unique circumstances, we find that it would not create an appearance of impropriety to grant an exception to the revolving door regulation. Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from applying for and accepting, if offered, the position of Town Manager because the unique facts represented herein support the application of the exception to Commission Regulation 36-14-5014’s revolving door restrictions. 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: Commission Regulation 36-14-5014 Related Advisory Opinions: A.O. 2015-22 A.O. 2014-5 Keywords: Public Employment Revolving Door