Advisory Opinion No. 2017-9 Rhode Island Ethics Commission Advisory Opinion No. 2017-9 Approved: March 21, 2017 Re: Susan E. Gardiner QUESTION PRESENTED: The Petitioner, a former Legislative Fiscal Analyst for the Rhode Island State Senate, a state employee position, requests an advisory opinion regarding the application of the revolving door provisions of the Code of Ethics, given her new employment as the Director of Policy and Business Development for the Rhode Island Public Expenditure Council. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former Legislative Fiscal Analyst for the Rhode Island State Senate, a state employee position, is prohibited by the Code of Ethics from representing her new private employer before the Rhode Island General Assembly. The Petitioner represents that she was employed by the Joint Committee on Legislative Services (“JCLS”) [1] as a Legislative Fiscal Analyst in the Senate Fiscal Office (“SFO”) of the Rhode Island State Senate (“the Senate”) until January 10, 2017. As part of her duties, she was responsible for preparing a factual, nonpartisan cost analysis of state agencies’ budgets, producing briefing documents intended to educate and inform members of the Senate on fiscal issues, monitoring and forecasting revenues, and responding to information requests from members of the Senate. The Petitioner states that she never worked with elected members of the Rhode Island House of Representatives (“the House of Representatives”) and had only minimal, ministerial contacts with her analyst counterparts in the House Fiscal Office. The Petitioner states that her interactions with executive branch agencies were limited to information gathering from the representatives of these agencies. The Petitioner is now employed as the Director of Policy and Business Development for the Rhode Island Public Expenditure Council (“RIPEC”). As part of her new duties, the Petitioner is involved with policy development and advocacy for RIPEC and for the Rhode Island Business Coalition (“the Coalition”) [2]. The Petitioner’s duties also include representing both RIPEC and the Coalition before executive branch agencies and testifying before the Senate and the House of Representatives on legislation. The Petitioner understands that she is not permitted to interact with the Senate for a period of one year from the severance of her position with the Senate Fiscal Office. However, the Petitioner seeks guidance from the Ethics Commission on the application of the Code of Ethics’ revolving door and post-employment restrictions with respect to representing RIPEC and the Coalition before the House of Representatives and the executive branch of Rhode Island state government. The Code of Ethics prohibits a state employee from representing herself or other persons or organizations before a state or municipal agency of which she is a member or by which she is employed. R.I. Gen. Laws § 36-14-5(e)(1) & (2). A person represents herself or another person before an agency when she 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 her former agency and colleagues by reason of her 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 prohibit the use and/or disclosure of confidential information acquired by an official or employee during the course of or by reason of her official employment, particularly for the purpose of obtaining financial gain. In previous advisory opinions the Ethics Commission has applied section 36-14-5(e) to members and employees of the General Assembly. For example, in Advisory Opinion 2004-4, the former Special Assistant to the House Majority Leader of the House of Representatives sought advice as to whether, upon leaving his public employment, he could represent private businesses as a lobbyist before the Rhode Island Senate and certain executive branch agencies. Applying section 36-14-5(e) of the Code, the Ethics Commission opined that, although the Petitioner would be permitted to lobby the executive branch immediately upon his severance from his position with the House Majority Leader, he was required to wait one year prior to lobbying either chamber of the General Assembly. Similarly, in Advisory Opinion 2003-2, the Commission opined that a State Representative who was privately employed by the American Lung Association was prohibited by section 36-14-5(e) from lobbying or otherwise representing his employer before either chamber of the General Assembly. Considering the Petitioner’s above representations and consistent with prior advisory opinions in this area, it is the opinion of the Ethics Commission that the Petitioner must refrain from appearing before the Rhode Island General Assembly, including the House of Representatives and the Senate, for a period of one year after the date of her severance from her position as a Legislative Fiscal Analyst. However, the Code of Ethics does not prohibit the Petitioner from immediately representing herself or other persons or organizations before the executive branch or its departments. Finally, the Petitioner may not use any confidential information she obtained while working for the Senate Fiscal Office for financial gain. Section 5(b), (c) & (d). 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) Commission Regulation 36-14-5016 Related Advisory Opinions: A.O. 2013-28 A.O. 2004-4 A.O. 2003-2 Keywords: Revolving Door Private Employment [1] The JCLS is the hiring authority for the General Assembly. The JCLS was created by statute to have exclusive authority over all administrative and financial matters affecting the operation of the General Assembly. R.I. Gen. Laws §§ 22-11-1 et seq. The JCLS is comprised of five (5) members who are: the Speaker of the House of Representatives serving as the Chairperson; the President of the Senate serving as the Vice Chairperson; the House Majority Leader; the House Minority Leader; and the Senate Minority Leader. The General Assembly’s website describes the work of the JCLS as follows: Under the direction of the Joint Committee on Legislative Services, the JCLS Administrative Office is responsible for the overall day-to-day operations of the General Assembly. Matters pertaining to personnel, payroll and benefits, operations, purchasing and accounts payable are handled through this office. The JCLS office prepares and submits the annual budget and oversees the finances of the Legislature. The operations staff is responsible for the purchasing function, the upkeep and maintenance of the legislative offices in the State House, the disbursement of supplies to the various offices of the JCLS, and is responsible for repairs to equipment and furnishings of the Legislature. http://www.rilin.state.ri.us/Pages/JCLS.aspx. [2] The Petitioner explains that the Coalition is comprised of business trade associations and several of the Rhode Island chambers of commerce. Its purpose is to study Rhode Island’s economic challenges and provide suggestions for making the business climate more competitive.