Advisory Opinion No. 2018-1 Rhode Island Ethics Commission Advisory Opinion No. 2018-1 Approved: January 9, 2018 Re: Sharon M. Kernan, RN, MPH QUESTION PRESENTED: The Petitioner, a former Interdepartmental Project Manager for the Medicaid Program at the Rhode Island Executive Office of Health and Human Services, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from assisting a private health-care provider with the preparation of an application for a Certificate of Need to be submitted to the Health Services Council during the one-year period following her retirement from state employment. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former Interdepartmental Project Manager for the Medicaid Program at the Rhode Island Executive Office of Health and Human Services, a state employee position, is not prohibited by the Code of Ethics from assisting a private health-care provider with the preparation of an application for a Certificate of Need to be submitted to the Health Services Council during the one-year period following her retirement from state employment, subject to certain limitations set forth in this opinion. On September 30, 2017, the Petitioner retired from her position as an Interdepartmental Project Manager for the Medicaid Program at the Rhode Island Executive Office of Health and Human Services (“EOHHS”). The Petitioner represents that her duties included program development and management of a variety of programs within the Medicaid Program including Medicaid-funded transportation, a Shared Living Program, various programs serving children with special health-care needs, the Katie Becket Program, transportation services for certain Medicaid recipients and programs serving children with behavioral health-care needs. The Petitioner states that, following her retirement, she was asked by Joy Health Care to assist, as a contract consultant, in the preparation of its application for a Certificate of Need (“CON”). The Petitioner explains that Joy Health Care is a private entity which wishes to establish a home health agency that would provide health-care services to Hispanic residents in Providence and neighboring communities. In order to do so, however, Joy Health Care is required to apply for and receive a CON from the Health Services Council. The Health Services Council consults and advises the Department of Health (“DOH”) regarding healthcare facility licensing reviews.[1] Furthermore, DOH is one of the EOHHS’ four departments, including also the Department of Children, Youth and Families (“DCYF”), the Department of Human Services (“DHS”), and the Department of Behavioral Healthcare, Development Disabilities and Hospitals (“BHDDH”).[2] The Petitioner also represents that her duties as a consultant will not extend beyond assisting in the completion of the CON application. She states that she will not sign the CON application, will not represent Joy Health Care before the Health Services Council, the DOH or the EOHHS, and will not disclose any confidential information that she acquired during the course of or by reason of her state employment. Given this set of facts, the Petitioner requests an advisory opinion regarding whether the Code of Ethics prohibits her from accepting a contract consulting position assisting Joy Health Care with the preparation of its CON application during the one-year period following her retirement from state employment. The Code of Ethics prohibits a public official from representing herself or any other person before any state or municipal agency of which she is a member or by which he is employed. R. I. Gen. Laws § 36-14-5(e)(1); Commission Regulation 36-14-5016. Section 36-14-5(e)(4) extends this prohibition for a period of one year after the Petitioner has officially severed her position with the agency. This prohibition is absolute and applies to the entire agency, including all of its offices, sections, programs or divisions. See A.O. 2003-51. The “revolving door” language is provided so as to minimize any influence the former public official may have in a matter before her former agency. 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). Additionally, the Code of Ethics also prohibits the use and/or disclosure of confidential information acquired by a public employee during the course of, or by reason of, her official employment, particularly for the purpose of obtaining financial gain. See § 36-14-5(b), (c) & (d). The Commission has issued numerous advisory opinions interpreting § 36-14-5(e)(4)’s requirements with respect to former state employees interacting with their former agencies during the one-year period following the date of severance from their state employment. See, e.g, A.O. 2008-62 (opining that a 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 with an attorney whose practice consists of filing medical assistance applications on behalf of his clients with DHS, must avoid any direct contact with DHS, and 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); A.O. 2006-42 (opining that the former Rhode Island State Fire Marshal could provide consulting services to private companies, national services, and schools, provided that he did not represent his employers’ or his business associates’ interests before his former agency for a period of one year following his official severance from service, and that he did not disclose confidential information obtained during the course of his state employment). In the instant matter, the Petitioner represents that her work as a consultant with Joy Health Care will not require her to appear before the EOHHS, the DOH or the Health Services Council, or to disclose any confidential information that she acquired during the course of or by reason of her state employment. 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 from assisting Joy Health Care with the completion of its CON application, provided that she does not act as an expert witness or represent Joy Health Care before the Health Services Council, the DOH and the entire EOHHS, including all of its offices, sections, programs or divisions. Notwithstanding the restrictions outlined above, the Petitioner may engage in ministerial activities such as hand-delivering documents, reviewing public records, and requesting public information, that do not involve EOHHS decision-making. Finally, the Petitioner may not use any confidential information she obtained while working for the EOHHS for financial gain. Section 36-14-5(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: § 36-14-5(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. 2008-62 A.O. 2006-42 A.O. 2003-51 Keywords: Post-Employment Private Employment Revolving Door Previous