Advisory Opinion No. 2016-9 Rhode Island Ethics Commission Advisory Opinion No. 2016-9 Approved: February 23, 2016 Re: Jeff C. Davis, AICP QUESTION PRESENTED: The Petitioner, a former Principal Planner with the Division of Planning in the Department of Administration, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from working on a project for his private employer that involves a grant managed by the Rhode Island Department of Health. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former Principal Planner with the Division of Planning in the Department of Administration, a state employee position, is not prohibited by the Code of Ethics from working on a project for his private employer that involves a grant managed by the Rhode Island Department of Health. The Petitioner was employed as a Principal Planner with the Statewide Planning Program at the Division of Planning, which is under the umbrella of the Rhode Island Department of Administration (“DOA”), from February 2012 until December 11, 2015. He states that the majority of his work involved providing staff support to two boards within the Statewide Planning Program: the State Planning Council[1] and the Consortium for RhodeMap RI.[2] The Petitioner informs that he is presently employed as a project planner in the Providence office of the Horsley Witten Group, Inc., (“HW”), an environmental science and engineering firm. He states that HW has entered into a contract with the Town of Bristol (“Bristol”) to manage the public engagement and planning work for a “Health Equity Zone” in that town.[3] He states that Bristol’s work is being funded through a grant from the United States Centers for Disease Control and Prevention (“CDC”) which is managed by the Rhode Island Department of Health (“DOH”). He informs that HW will help Bristol: build a coalition of local residents and stakeholders interested in improving public health; develop a baseline analysis of current health trends and needs; and draft and finalize a work plan to implement projects that will meet these needs. The Petitioner states that at the Division of Planning he worked with representatives of DOH on a variety of initiatives where public health and planning intersected, such as DOH’s membership on both the State Planning Council and the Consortium for RhodeMap RI, and as an alternate ex-officio member, on behalf of the Division of Planning, of DOH’s Commission for Health Advocacy and Equity. However, the Petitioner represents that as a Principal Planner he had several levels of supervision above him at the Division of Planning and he had no supervisory, policymaking or fiscal authority over DOH, or the Council or the Consortium both of which he served as support staff. Cognizant of the Code of Ethics’ revolving door restrictions, the Petitioner represents that he will not represent HW or any of HW’s clients before any division of DOA for one year following his severance from state employment. However, the Petitioner seeks guidance as to whether he may work on HW’s contract with Bristol, given that it is funded with a CDC grant that is managed by DOH. The Petitioner states that his role on the Bristol contract, which is subordinate to HW’s project manager, would not require him to interact with DOH staff other than ministerial contacts at public meetings. He represents that his work would involve assisting Bristol with public engagement, which would include some of the following duties: staffing public meetings, sitting at the sign-in table, and taking notes; administering public surveys; and facilitating focus groups with local residents and stakeholders. 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. R.I. Gen. Laws § 36-14-5(e)(1) & (2). A person represents himself or another person before an agency when he participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of that agency. Section 36-14-2(12) and (13); Commission Regulation 36-14-5016(a) & (b). 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). 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. However, interactions with a former agency that are ministerial in nature and do not involve agency decision-making are not prohibited. See, e.g., A.O. 2013-28 (opining that a former Principal Policy Associate for the Rhode Island Office of the Health Insurance Commissioner (“OHIC”) could accept private employment with Neighborhood Health Plan of Rhode Island during the year following his severance from state employment, provided that he did not represent his private employer before OHIC during that year and any contacts that he had with OHIC were purely ministerial in nature, such as hand delivering documents, reviewing public records, and requesting public information). In addition to section 5(e)’s post-employment restrictions, subsections 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. The Commission has issued numerous advisory opinions interpreting section 36-14-5(e)(4)’s requirements with respect to former state employees interacting with their former state agency during the one year following their date of severance from state employment. See, e.g., A.O. 2015-37 (opining that the former Administrator of Sustainable Watersheds for the Rhode Island Department of Environmental Management (“DEM”), who accepted private employment at Grow Smart Rhode Island, was restricted by the Code of Ethics from: 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 from disclosing any confidential information that he may have obtained during the course of his state employment); A.O. 2013-34 (opining that the former Chief of Groundwater and Wetlands Protection for DEM could accept employment with an environmental science and engineering firm during the year following his severance from public employment provided that the Petitioner did not represent the firm or its clients before DEM during that year); 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 consisted of filing medical assistance applications on behalf of 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). Here, the Petitioner, now privately employed by HW, would like to assist the project manager on HW’s contract with Bristol to create a Health Equity Zone with CDC grant funding that is managed by DOH. The Petitioner represents that HW has a contractual relationship with Bristol to help implement a Health Equity Zone in the town. Bristol, as the recipient of a CDC grant, has a contractual relationship with DOH, the state agency designated to manage the grant by the CDC. However, HW is not in contractual privity with DOH and, even if it were, the Petitioner’s prior interactions with DOH were as a DOA staff member who did not have any supervisory, policymaking or fiscal authority over DOH. Thus, the Petitioner’s potential ministerial contacts with DOH while working on HW’s contract with Bristol do not implicate the revolving door provisions contained in section 5(e). For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from working on a project for his private employer that involves a grant managed by the Rhode Island Department of Health. 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) § 36-14-2(13) § 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. 2015-37 A.O. 2013-34 A.O. 2013-28 A.O. 2008-62 Keywords: Private Employment Revolving Door [1] See R.I. Gen. Laws § 42-11-10 (setting forth statutory authority for the Statewide Planning Program and the State Planning Council). [2] The Consortium was the decision-making body of RhodeMap RI, which managed a grant from the United States Department of Housing and Urban Development. “RhodeMap RI was a process through which the State sought to strengthen our economy, meet current and future housing needs, and plan for future growth through the development of integrated plans and guidance consistent with existing strategies for transportation, land use and environmental protection.” See http://www.planning.ri.gov/statewideplanning/sustainable/consortium.php (emphasis in original) (last accessed Feb. 16, 2016). [3] The Rhode Island Department of Health website provides the following information on “Health Equity Zones”: The Centers for Disease Control and Prevention and the Department of Health are collaborating with 11 organizations throughout Rhode Island to support innovative approaches to prevent chronic diseases, improve birth outcomes, and improve the social and environmental conditions of our neighborhoods. Each organization’s project will be implemented over a three or four year period. Funding will support the development of community collaboratives that include municipal leaders, residents, businesses, transportation and community planners, law enforcement, education systems and health systems, among others. These groups will look at the factors that drive poor health outcomes, and create action plans based on strategies that have been shown to be successful. http://www.health.ri.gov/projects/healthequityzones/ (last accessed Feb. 16, 2016).