Advisory Opinion No. 2017-14 Rhode Island Ethics Commission Advisory Opinion No. 2017-14 Approved: April 4, 2017 Re: Brian C. Tefft QUESTION PRESENTED: The Petitioner, a Principal Wildlife Biologist with the Rhode Island Department of Environmental Management, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him, upon retirement, from accepting a position with a private non-profit entity dedicated to the conservation, enhancement and professional management of North America’s wildlife. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Principal Wildlife Biologist with the Rhode Island Department of Environmental Management, a state employee position, is not prohibited by the Code of Ethics, upon retirement, from accepting a position with a private non-profit entity provided that: 1) he does not represent his new employer 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 2) he does not disclose any confidential information that he may have obtained during the course of his state employment. The Petitioner is a Principal Wildlife Biologist at the Division of Fish and Wildlife within the Rhode Island Department of Environmental Management (“DEM”). The Petitioner states that his duties include management of state-owned property, research and management of wildlife species and the development of management plans to monitor their health and sustainability, and development of annual hunting regulations for each species. The Petitioner represents that he is retiring from state service on April 30, 2017. The Petitioner states that he received a post-retirement employment offer from the Wildlife Management Institute (“WMI”), a private non-profit scientific and educational organization dedicated to restoring and ensuring the well-being of North America’s wildlife populations and their habitats. The Petitioner represents that the employment offer is subject to the Petitioner receiving an approval from the Ethics Commission in the form an advisory opinion. The Petitioner states that he has been offered employment as a coordinator for the State of Rhode Island, recruiting private landowners for the purpose of developing wildlife habitats on their properties and providing the landowners with technical assistance to develop the right wildlife habitats. The Petitioner explains that he would work closely with the United States Department of Agriculture (“USDA”) rather than DEM. The Petitioner represents that the Division of Fish and Wildlife performs similar work on state-owned property. However, the Petitioner states that he would be working with private landowners and their properties and that he would have no interaction with DEM beyond purely ministerial actions such as obtaining publicly available information. The Petitioner explains that once the projects are developed, the private landowners may seek permits from the Division of Forestry within DEM to implement the habitat projects. However, the Petitioner states that he will neither represent these landowners before DEM nor prepare any documents that will be presented to DEM in such matters. The Petitioner represents that he is aware of the Code of Ethics and its “revolving door” prohibitions against representing himself or others, or acting as an expert witness, before DEM. The Petitioner explains that he has discussed these prohibitions with his prospective employer. However, his post-retirement employment offer is conditioned on him receiving an advisory opinion from the Ethics Commission as to whether the Code of Ethics prohibits or in any way restricts his proposed private employment with WMI upon his retirement from DEM. The Code of Ethics prohibits a public official or employee from representing himself or other persons or organizations, or acting as an expert witness before a state or municipal agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(“section 5(e)”). 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) & (13); Commission Regulation 36-14-5016(a) & (b). This prohibition applies not only during the period of employment, but is extended 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 employee may have over his former agency and colleagues by reason of his past employment 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, section 36-14-5(b), (c) and (d) of the Code of Ethics prohibits 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 agencies during the one year following the date of severance from state employment. For example, in Advisory Opinion 2012-12, the Ethics Commission opined that a former senior environmental scientist at DEM is not prohibited by the Code of Ethics from working for the Rhode Island Natural Resources Conservation Service upon his retirement, provided that he does not have any personal involvement with a matter before his former agency for a period of one year following his official date of severance, and he does not disclose confidential information he may have obtained during the course of his state employment. See also A.O. 2008-62 (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 for an attorney whose practice consists of filing medical assistance applications on behalf of his clients with DHS, must 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). In the instant matter, the Petitioner represents that his work with WMI will not require him to appear before, or even interact with, DEM beyond the performance of ministerial acts. Accordingly, based upon the above representations, and consistent with prior advisory opinions, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics, upon retirement, from accepting a position with WMI provided that: 1) he does not represent WMI or any other person or entity before DEM for a period of one year following his official date of severance from state employment; and 2) he does not disclose any confidential information that he may have obtained during the course of his state employment. 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 § 36-14-5(b) § 36-14-5(c) § 36-14-5(d) § 36-14-5(e) Related Advisory Opinions: A.O. 2013-28 A.O. 2012-12 A.O. 2008-62 Keywords: Post-Employment Private Employment Revolving Door