Advisory Opinion No. 2017-4 Rhode Island Ethics Commission Advisory Opinion No. 2017-4 Approved: February 7, 2017 Re: Brian M. Daniels QUESTION PRESENTED: The Petitioner, a former Deputy Budget Officer in the Office of Management and Budget, a state employee position, requests an advisory opinion to provide guidance on the application of the revolving door provisions of the Code of Ethics, given his new employment as the Executive Director of the Rhode Island League of Cities and Towns. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former Deputy Budget Officer in the Office of Management and Budget, a state employee position, is prohibited by the Code of Ethics from representing his new private employer before the Office of the Governor, the Department of Administration and its divisions, including the Office of Management and Budget, as well as any other state agencies with which he had substantial involvement as part of his prior public duties, until the expiration of one (1) year after leaving his public position. The Petitioner began working for the State of Rhode Island in January 2011 as the Director of Policy in the Office of the Governor. In 2012, after the General Assembly approved the creation of the Office of Management and Budget (“OMB”), which is currently a division of the Department of Administration (“DOA”), the Petitioner left the Office of the Governor and began serving as the OMB’s Director of Performance Management. In March 2016, the Petitioner transitioned to a new position in the OMB’s Budget Office as Deputy Budget Officer. The Petitioner states that, as Deputy Budget Officer, he assisted the Budget Officer with the Budget Office’s overall management and operation. He also was involved in helping to develop the Governor’s proposed annual budget, providing support to the Budget Officer, OMB Director and Director of Administration in developing and presenting budget options to the Governor. Additionally, the Petitioner states that as Deputy Budget Officer he also was in charge of a team of analysts who handled budget development and oversight for several agencies in the Health and Human Services area.[1] The Petitioner also notes that he occasionally interacted with other divisions in the DOA such as Human Resources, Purchases and Information Technology to provide analytic support on the DOA’s strategic initiatives. The Petitioner recently left his public position at the OMB in January 2017 to begin new employment in the private sector as the Executive Director of the Rhode Island League of Cities and Towns (“the League”). The League is a nonprofit organization that represents Rhode Island municipal government interests before the state’s legislative and executive branches of government, and also provides technical assistance, information sharing and training to assist municipal officials in fulfilling their responsibilities. The Petitioner represents that, as Executive Director, he will be involved in developing policy and advocating for the interests of the League’s member cities and towns before the legislature and various divisions, boards and officials of the executive branch. By statute and custom, the League’s Executive Director also serves on various state boards and commissions. Given the League’s substantial interactions with departments and officials of state government, the Petitioner seeks guidance from the Ethics Commission as to the steps he must take to ensure compliance with the Code of Ethics, particularly its revolving door provisions. Under the Code of Ethics, a public official or employee may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1) & (2). Furthermore, the Code of Ethics prohibits a person holding any position in the Governor’s Office or the DOA from representing himself or any other person before any other state agency with which he has “substantial involvement” by reason of his official duties. Commission Regulation 36-14-5015(a) (“Regulation 5015”). The term “substantial involvement” is defined to include substantial control, influence or participation in matters involving budget, communications, legal, legislative, or policy matters. Regulation 5015(a)(4). Both of these “revolving door” restrictions apply while the public official is serving and continue for a period of one (1) year thereafter. Section 36-14-5(e)(4); Regulation 5015(b)(3). See A.O. 2017-2 (former Chief Strategy Officer for the Executive Office of Health and Human Services (“EOHHS”) who performed the duties of the Director of the Department of Children, Youth and Families (“DCYF”), was not permitted to represent her new private employer before DCYF, OHHS, DOA or the Office of the Governor for a period of one (1) year after leaving state service); 2016-14 (retiring engineer with the DOA was not prohibited from engaging in private employment as a structural engineer provided that he did not represent his private clients before the Department of Administration or its divisions for one year after leaving state service). Additionally, sections 36-14-5(b), (c), & (d) all 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 for himself, his employer or business associate. In the instant matter, from 2012 through January 7, 2017, the Petitioner was an employee of the DOA. Accordingly, pursuant to section 36-14-5(e), the Petitioner is prohibited from representing himself or any other person or entity, including the League, before the DOA or any of its divisions until the expiration of one (1) year after leaving his public employment. Furthermore, the Petitioner’s representations indicate that in his role as Deputy Budget Officer he had substantial budgetary involvement with the Office of the Governor and with the Health and Human Services agencies listed in footnote 1, supra. Therefore, pursuant to Regulation 5015(a), the Petitioner is also prohibited from representing himself or any other person or entity, including the League, before the Office of the Governor or any of the listed Health and Human Services agencies until the expiration of one (1) year after leaving his public employment. Activities that would constitute representation are generally interactions involving the presentation of information or arguments for the purpose of influencing the judgment of the agency on matters concerning the Petitioner, the League or its members. On the other hand, contacts involving ministerial matters that do not involve a public agency’s discretion or decision-making are not prohibited. Until the expiration of one (1) year following the termination of his public employment, the Petitioner is encouraged to continue consulting with the Ethics Commission as to the Code of Ethics’ potential application to his interactions with state agencies. 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(b) § 36-14-5(c) § 36-14-5(d) § 36-14-5(e) Commission Regulation 36-14-5015 Related Advisory Opinions A.O. 2017-2 A.O. 2016-14 Keywords Post-Employment Revolving Door [1] The Petitioner represents that the Budget Office defines the functional area of Health and Human Services as encompassing nine (9) departments and agencies: The Executive Office of Health and Human Services; Department of Behavioral Healthcare, Developmental Disabilities and Hospitals; Department of Children, Youth and Families; Department of Health; Department of Human Services; Office of Child Advocate; Commission on Deaf and Hard of Hearing; Governor’s Commission on Disabilities; and Office of Mental Health Advocate.