Advisory Opinion No. 2016-39 Rhode Island Ethics Commission Advisory Opinion No. 2016-39 Approved: November 15, 2016 Re: Magdy A. Guirguis, PE QUESTION PRESENTED: The Petitioner, a Supervising Civil Engineer/Structural-Ride Safety for the Building Code Commission in the Rhode Island Department of Administration, a state employee position, requests an advisory opinion regarding whether, upon his retirement from state employment, there is a waiting period during which he may not design onsite waste water treatment systems requiring the approval of the Rhode Island Department of Environmental Management. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Supervising Engineer/Structural-Ride Safety for the Building Code Commission in the Rhode Island Department of Administration, a state employee position, may immediately upon his retirement from state employment design onsite waste water treatment systems requiring the approval of the Rhode Island Department of Environmental Management. The Petitioner is a licensed Professional Engineer. From 1992 until 1999, the Petitioner was employed by the Rhode Island Department of Environmental Management (“DEM”) in its Office of Water Resources and its Office of Waste Management. The Petitioner states that his duties did not include work in the Office of Onsite Wastewater Treatment Systems. Since leaving the DEM in 1999, and until the present, the Petitioner has been employed by the Rhode Island Department of Administration (“DOA”), Building Code Commission (“BCC”). The Petitioner is currently the BCC’s Supervising Civil Engineer/Structural-Ride Safety. In that capacity, the Petitioner states that his primary responsibility is to manage the Amusement Ride Safety Program, which entails reviewing amusement rides’ documentation and structural plans, conducting safety inspections, and generally ensuring compliance with the Amusement Ride Safety Act (R.I. Gen. Laws § 23-34.1 et seq.). The Petitioner states that in addition to his primary duties for the BCC listed above, he is also involved in reviewing structural plans for state building projects, both for new buildings and for existing building upgrades. He notes that he has, in the past, reviewed plans for many different state agencies, including the DEM, but represents that during such reviews he does not personally communicate with the agencies. Rather, his interactions during a structural review are with a project’s structural engineer and with his own supervisor, the Building Code Commissioner. The Petitioner represents that in June 2001, he passed the DEM-administered Onsite Wastewater Treatment System Designer II test, and received his Designer II license in 2002. Persons holding a Designer II license are permitted to prepare plans, certifications and specifications for onsite wastewater treatment systems, and submit them to the DEM for review and approval. The Petitioner states that he has never utilized his Designer II license since receiving it, but he has maintained an active license status by attending continuing education courses so that he may work in the field upon retiring from state employment. The Petitioner represents that he has notified his supervisor that he will retire from state employment on December 24, 2016. He states that, following his retirement from public employment, he intends to begin a private practice as a Professional Engineer which may include designing onsite wastewater treatment systems utilizing his Designer II license. He notes that all such designs must be submitted to the DEM’s Office of Onsite Wastewater Treatment Systems for review and approval. Given this DEM review process, and in light of his past employment at the DEM and his current duties at the BCC, the Petitioner seeks guidance from the Ethics Commission as to whether the Code of Ethics prohibits him, immediately upon his retirement, from submitting designs to DEM for approval or from representing his private client’s before DEM as part of the review and approval process.[1] The Code of Ethics provides that the Petitioner, as a public employee, shall not engage in any business, employment, transaction or professional activity which is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). The Code of Ethics further prohibits the Petitioner from accepting any other employment which will either impair his independence of judgment as to his official duties or induce him to disclose confidential information acquired by him in the course of and by reason of his official duties. Section 36-14-5(b). Because the question presented by this Petitioner relates to private employment and activities he will engage in following his severance from public employment, and does not implicate his use of any confidential information, these provisions of the Code are not applicable. However, the Code of Ethics contains certain “revolving door” and “post-employment” provisions which continue to apply for up to one (1) year after a public official or employee leaves his or her public position. In particular, R.I. Gen. Laws § 36-14-5(e) of the Code of Ethics prohibits a public employee such as the Petitioner from representing himself or any other person or entity before any state or municipal agency of which he was a member or by which he was employed for a period of one (1) year after leaving state service. Section 36-14-5(e)(1), (2) and (4). The Ethics Commission considered the application of section 36-14-5(e) to very similar facts in Advisory Opinion 2004-35. There, the petitioner was similarly a Professional Engineer who had once been employed by the DEM, but for the past four (4) years had been employed by the Department of Transportation (“DOT”) as a Senior Civil Engineer for the DOT’s Bridge Engineering Section. The petitioner wished to take the DEM examination to obtain an Individual Sewage Disposal System (“ISDS”) Class III Designer license, and upon obtaining the license to commence designing ISDS systems as a side business. The Ethics Commission opined that such secondary employment was permitted because the petitioner had officially severed his employment with the DEM four (4) years previously. Accordingly, because more than one (1) year had passed since the severance of the petitioner's employment with the DEM, section 36-14-5(e) did not prohibit the petitioner from submitting plans and from representing others before that agency. See also A.O. 2013-30 (Engineer employed by the DOT is not prohibited from entering into a private contract to design an Onsite Wastewater Treatment System for the DEM). Compare A.O. 2013-34 (former Chief of Groundwater and Wetlands Protection for the DEM, who left state employment for a position in the private sector, may not represent his new firm or its clients before the DEM for a period of one year following his severance from state employment). In the instant matter, the Petitioner left his employment at the DEM over seventeen (17) years ago. Although his position at the DOA has required him to review structural plans for state building projects, including some DEM projects, such reviews did not require him to communicate with DEM personnel. Based on these representations, section 36-14-5(e)’s one-year prohibition against representing clients before the DEM has long expired. Accordingly, upon the Petitioner’s retirement from public employment the Code of Ethics does not impose a waiting period before which he may commence private employment designing onsite wastewater treatment systems which require the approval of the DEM. 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(a) § 36-14-5(b) § 36-14-5(e) Other Authority: R.I. Gen. Laws § 23-34.1 et seq. Related Advisory Opinions: A.O. 2013-34 A.O. 2013-30 A.O. 2004-35 Keywords: Post Employment Private Employment Revolving Door [1] In his letter seeking the instant advisory opinion, the Petitioner also sought guidance relative to his ability to engage in other engineering work, particularly structural design work, “given that Residential Building Projects and contract disputes are regulated and adjudicated by the DOA/BCC Contractors Registration Board.” In order to avoid confusion of issues, this other question will be addressed in a separate advisory opinion.