Advisory Opinion No. 2017-10 Rhode Island Ethics Commission Advisory Opinion No. 2017-10 Approved: March 21, 2017 Re: Nicole H. B. Barnard QUESTION PRESENTED: The Petitioner, formerly an Assistant Labor Relations Hearing Officer in the Human Resources Division of the Rhode Island Department of Administration, a state employee position, request an advisory opinion as to whether she may represent union members in hearings before her former agency. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, formerly an Assistant Labor Relations Hearing Officer in the Human Resources Division of the Rhode Island Department of Administration, a state employee position, may not represent union members or others in hearings before her former agency until the expiration of one year after severing her position with the Department of Administration. On December 14, 2015, the Petitioner began employment as an Assistant Labor Relations Hearing Officer (“Hearing Officer”) at the Rhode Island Department of Administration (“DOA”) in its Division of Human Resources. The Petitioner’s duties as a Hearing Officer primarily involved hearing grievances arising under various collective bargaining agreements between labor unions and the State of Rhode Island, then issuing written decisions thereon. The Petitioner states that grievance hearings are usually not transcribed, and that the parties are only occasionally represented by attorneys at law. Following a grievance hearing, an aggrieved party may seek to have the matter referred to arbitration. The Petitioner estimates that during her employment she prepared between fifty (50) and sixty (60) written decisions, which were subject to review and approval by a supervising attorney. The Petitioner’s employment with the DOA ended on June 10, 2016. On January 4, 2017, the Petitioner began private employment in her current position with Rhode Island Council 94, AFSCME, AFL-CIO (“Council 94”), Rhode Island’s largest public employees’ labor union, as an Attorney/Senior Staff Representative. The Petitioner states that among her duties at Council 94 is representing members in the same type of hearings she previously had presided over as a Hearing Officer. The Petitioner states that the current Hearing Officer for DOA was hired after she left the agency. Furthermore, the Petitioner states that she would not represent Council 94 members in matters over which she previously presided as a Hearing Officer. Given these representations, the Petitioner seeks guidance from the Ethics Commission as to whether she is barred by the Code of Ethics from representing Council 94 members before the DOA and, if so, whether the facts represented justify the application of a hardship exception. The Code of Ethics prohibits public officials and employees from representing themselves, representing others, or acting as an expert witness 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)(“section 5(e)”); Commission Regulation 36-14-5016(b)(1). This prohibition continues while the employee or official remains in office and continues for a period of one (1) year thereafter. Section 36-14-5(e)(4). As an initial matter, the Petitioner’s representation of Council 94 members in grievance hearings before the DOA, within one year of leaving her position as the DOA Hearing Officer who presided over such grievance hearings, falls squarely within section 5(e)’s express prohibitions. However, the Petitioner asks whether her particular circumstances would justify allowing an exception to section 5(e), permitting her appearance and representation at grievance hearings within the one year “cooling off” period. Section 5(e) does permit the Ethics Commission to authorize an exception, allowing a public official or employee to represent oneself before one’s current or former agency, based upon a finding of hardship. Section 36-14-5(e)(1). However, there is no corresponding “hardship exception” written into section 5(e)’s proscriptions against representing others before one’s own agency. Nevertheless, the Ethics Commission has on rare occasions permitted such representation. For example, new probate court judges have occasionally been permitted to file affidavits in their courts to close the estates of longstanding, pre-existing clients. See A.O. 2015-3 (recently appointed deputy probate judge may file Affidavits of Complete Administration with his probate court to close out two estates); A.O. 2009-41, A.O. 2009-40 & A.O. 2009-38 (issuing three advisory opinions to the recently appointed probate court judge, permitting him to file Affidavits of Complete Administration to close out estates that he had represented prior to his appointment, based upon a finding of hardship to the estates); A.O. 2009-6 (granting a hardship exception to the recently appointed Smithfield Probate Court Judge and permitting him to file an Affidavit of Complete Administration for an estate he had been working on for a year, given that the work was nearly finished, he would not appear before the probate court, and it would be a hardship to the estate if he was required to withdraw at that time). See also A.O. 95-58 (attorney who left his longstanding, private environmental law practice to become legal counsel to Department of Environmental Management, but who was terminated after a brief probationary employment period, was permitted to resume his private environmental practice and appear before his former agency within a year of his termination). Here, given that the Petitioner would be appearing and representing clients in the same forum in which she previously served as Hearing Officer, section 5(e) very clearly applies and prohibits such representation. Although the Petitioner’s employment with the DOA was relatively brief, section 5(e)’s application does not depend on length of public service or employment. We also note that section 5(e)’s one-year “cooling off” period will expire in approximately three (3) months. Based on these factors, a hardship exception is not warranted. Accordingly, it is the opinion of the Rhode Island Ethics Commission that the Petitioner is prohibited from representing her employer, its members or anyone else before her former agency until the expiration of one year from her severance as an employee of the DOA. However, the Petitioner is permitted to represent her employer and its members at meetings or hearings conducted by state agencies other than the DOA even if, as sometimes happens, DOA employees or attorneys are present. The mere presence or participation of a DOA employee or attorney in another agency’s proceedings does not implicate section 5(e)’s prohibitions. 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(e) Regulation 36-14-5016 Related Advisory Opinions: A.O. 2015-3 A.O. 2009-41 A.O. 2009-40 A.O. 2009-38 A.O. 2009-6 A.O. 95-58 Keywords: Revolving Door Post-Employment