Advisory Opinion No. 2017-20 Rhode Island Ethics Commission Advisory Opinion No. 2017-20 Approved: May 23, 2017 Re: Thomas L. Papa QUESTION PRESENTED: The Petitioner, the former Chief of Staff to the Senate President, a state employee position, requests an advisory opinion regarding whether he may, within one year of leaving his Senate employment, accept new employment as the Governor’s Director of Boards and Commissions. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the former Chief of Staff to the Senate President, a state employee position, is not prohibited by the Code of Ethics from accepting employment as the Governor’s Director of Boards and Commissions. The Petitioner served as the Chief of Staff to the Senate President from 2014 until March 23, 2017. He represents that the Governor recently offered him a position in her office as the Director of Boards and Commissions, but that the offer is conditioned upon the Petitioner’s receipt of an advisory opinion from the Ethics Commission indicating that the Code of Ethics permits such employment. Under the Code of Ethics, no person holding “a senior policy-making, discretionary, or confidential position on the staff of any state elected official or the general assembly” shall seek or accept any other employment by any state agency while serving in such position and for a one-year period thereafter. R.I. Gen. Laws § 36-14-5(o)(1) (“section 5(o)”). Here, the Petitioner does not dispute that, as Chief of Staff to the Senate President, he served in a “senior policy-making, discretionary or confidential” position on the Senate President’s staff. See, e.g. A.O. 2009-16 (Chief of Staff to the Governor serves in “senior policy-making, discretionary, or confidential” role). Therefore, section 5(o) applies, prohibiting the Petitioner from accepting other state employment within one year of leaving his position unless the Petitioner’s situation fits within one of section 5(o)’s exceptions. Most relevant here among section 5(o)’s exceptions[1] is one that permits a senior staffer to seek and obtain employment with a different elected official in another senior policy-making, discretionary, or confidential position: Nothing contained herein shall prohibit . . . any senior policy-making, discretionary, or confidential member of the staff of any state elected official or the general assembly from seeking or accepting any other senior policy-making, discretionary, or confidential position on any general officer’s or the general assembly’s staff, or from seeking or accepting appointment as a department director by the governor. Section 36-14-5(o)(3). This exception would apply to the Petitioner, allowing him to accept the Governor’s offer of employment, if the Director of Boards and Commissions is considered to be a “senior policy-making, discretionary or confidential” position on the Governor’s staff. Prior advisory opinions involving section 5(o) help to clarify the proper interpretation and meaning of the phrase, “senior policy-making, discretionary, or confidential position.” The clearest example of a person serving in such a position can be found in Advisory Opinion 2009-16, where the Commission applied section 5(o) to the Governor’s Chief of Staff. There, the Chief of Staff’s status as a “senior policy-making, discretionary, or confidential” staff member of the Governor was based on his express representations that he was a senior policy advisor to the Governor, that he served in a confidential capacity, that all other staff members in the Governor’s Office were subordinate to him in the chain of command, and that he was one of a handful of people with direct access to the Governor. In Advisory Opinion 2012-20, we opined that the Governor’s Director of Performance Management, who had also served within the year as the Governor’s Director of Policy, was in a senior policy-making, discretionary, or confidential position. Factors considered in that determination included that he served as the primary point of contact in the Governor’s office on performance management issues, worked with cabinet directors and agency leadership to develop performance metrics that were consistent with the Governor’s agenda, developed and implemented the Governor’s policy agenda, participated in developing the annual budget request, and served as the Governor’s liaison to the Federal government and Congressional offices. Conversely, the Commission has issued advisory opinions in which it determined that section 5(o) did not apply because a petitioner did not serve in a “senior policy-making, discretionary, or confidential position.” For example, in Advisory Opinion 2016-1, a part-time attorney for the House Judiciary Committee was found to not be serving in a senior policy-making, discretionary, or confidential position, where his duties were limited to performing legal analysis for a single House committee, he had no formal contact with House leadership, and his position was several steps down the staff chain of command. Similarly, in Advisory Opinion 2003-50, the Commission found that section 5(o) did not apply to a “Senior Policy Analyst” for the Senate because, notwithstanding his title, the petitioner reported to and was supervised by a more senior “Director of the Senate Policy Office,” and did not attend senior staff meetings or work directly with Senate leadership. See also A.O. 2010-53 (communications and policy analyst on the Governor’s staff did not hold a “senior policy-making, discretionary or confidential position” because his position was subordinate to the Governor’s Press Secretary and his Director of Communications, and he did not take part in meetings between the Governor and his senior staff). Consistent with these prior advisory opinions, we have previously stated that section 5(o) is intended to apply to the most senior-level staffers of a state elected official who work directly with an elected official: (1) to help set policy (senior policy-making staff); or (2) whose duties are determined and set according to the needs and judgment of the elected official (senior discretionary staff); or (3) whose duties require access to non-public or privileged information obtained by or entrusted to the elected official (senior confidential staff). A.O. 2016-1. Common indicia of an elected official’s “senior” staff status identified in our prior advisory opinions have included: having direct access on a regular basis to the elected official for whom one serves; being included in senior staff or cabinet level meetings with the elected official; being supervised and directed as to one’s regular duties by the elected official; having delegated authority to speak or act on behalf of the elected official; having supervisory responsibility over subordinate staff members; having decision-making authority, especially in the areas of policy-making or budgets; or having access to confidential information entrusted to an elected official. In the present request, the Petitioner represents that the Director of Boards and Commissions (hereinafter, “Director”) is responsible for helping to identify and evaluate potential gubernatorial appointees, and helping them through the appointment and confirmation process. He has access to confidential resumes and other information related to potential candidates for appointment. The Director has supervisory responsibility over subordinate staff members in his office and is also responsible for communicating the Governor’s priorities to her appointees on the various boards and commissions. The Petitioner states that the Director communicates independently with Senate leadership and staff in connection with all appointments requiring Senate advice and consent. The Petitioner represents that the Director reports directly to the Governor’s Chief of Staff, as do all members of the Governor’s senior staff, and that the Director attends the Governor’s senior staff meetings on an as-needed basis. Considering the Petitioner’s representations, and consistent with the reasoning and analysis contained in our prior advisory opinions, we are of the opinion that the Governor’s Director of Boards and Commission is a senior policy-making, discretionary, or confidential position on the Governor’s staff. Accordingly, the Code of Ethics does not prohibit the Petitioner from seeking or accepting that position within one year of leaving his prior position as Chief of Staff to the Senate President. 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: R.I. Gen. Laws § 36-14-5(o) Related Advisory Opinions: A.O. 2016-1 A.O. 2012-20 A.O. 2010-53 A.O. 2009-16 A.O. 2003-50 Keywords: Public Employment Revolving Door [1] Although not relevant here, section 5(o) also expressly does not apply to persons who have a minimum of five (5) years of uninterrupted state service or persons who seek election to any constitutional office. R.I. Gen. Laws § 36-14-5(o)(2) & (4). Section 5(o) also expressly authorizes the Ethics Commission to allow an exception upon a finding that employment in the new position would not create an appearance of impropriety. Section 36-14-5(o)(5).