Advisory Opinion No. 2018-12 Rhode Island Ethics Commission Advisory Opinion No. 2018-12 Approved: February 27, 2018 Re: Richard A. Bernardo, P.E. QUESTION PRESENTED: The Petitioner, a former Manager of In House Design/Immediate Needs at the Rhode Island Department of Transportation, a state employee position, requests an advisory opinion regarding the application of the “revolving door” provisions of the Code of Ethics, given that his new private employer will submit his resume to the Department of Transportation as part of its Statement of Qualifications. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former Manager of In House Design/Immediate Needs at the Rhode Island Department of Transportation, a state employee position, is not prohibited by the Code of Ethics from including his resume as part of the Statement of Qualifications that his private employer will submit to the Department of Transportation. On December 23, 2017, the Petitioner resigned from his position as a Manager of In House Design/Immediate Needs at the Rhode Island Department of Transportation (“DOT”), where he was responsible for the development of contract documents and the oversight of the advertisement of bids from the Design/Build Team for the reconstruction of the Route 6/10 Interchange project. Upon leaving his state employment, the Petitioner joined HAKS Engineers, P.C. (“HAKS”), a private, full-service, consulting engineering firm, as Vice President and Branch Manager. The Petitioner states that prior to his joining HAKS, the DOT awarded several contracts to HAKS. The Petitioner represents that he had no direct or indirect involvement in the award of these contracts. Furthermore, he explains that every three to five years, the DOT solicits Statements of Qualifications from engineering firms in order to pre-qualify them for project assignments for the next three to five years. Once the firms are pre-qualified they are allowed to submit bids for DOT projects as they become available. Once a DOT project becomes available, only the pre-qualified firms may submit bids to the DOT for review. The Petitioner states that, as part of the Statements of Qualifications, all firms include their employees’ resumes. The Petitioner explains that it is expected that DOT will be soliciting Statements of Qualifications this spring. The Petitioner states that his private employer must receive pre-qualification in order to be able to bid for any DOT project. Given this set of facts, the Petitioner asks the Ethics Commission for guidance on the application of the “revolving door” provisions of the Code of Ethics regarding his ability to work on HAKS’ existing contracts with DOT and whether his resume could be submitted to the DOT as part of his private employer’s Statement of Qualifications during the one-year period following the date of his severance from state employment. The Code of Ethics prohibits a public official from representing 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); 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 his 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 his former agency. The definition section of the Code of Ethics provides that a person represents himself before a state or municipal agency if “he [] participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of the agency in his [] own favor.” Section 36-14-2(12). Additionally, the Code of Ethics prohibits the use and/or disclosure of confidential information acquired by a public employee during the course of, or by reason of, his official employment, particularly for the purpose of obtaining financial gain. See section 36-14-5(b), (c) & (d). 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 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). Accordingly, it is the opinion of the Ethics Commission that the Petitioner is prohibited by the Code of Ethics from representing himself or others, including his new private employer, or acting as an expert witness, before DOT, including all of its offices, sections, programs or divisions, for a period of one year following the date of severance of his state employment. 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 DOT’s decision-making. Next, the Commission has to consider whether the inclusion of the Petitioner’s resume by his private employer as part of its Statement of Qualifications constitutes a prohibited representation of himself or his employer for purposes of section 36-14-5(e). Most relevant to the instant matter is Advisory Opinion 2009-24, in which the Ethics Commission was presented with somewhat similar facts to those presented here. In that advisory opinion, a former state employee who served as legal counsel to the Real Estate Commission (“REC”), was allowed to accept a part-time instructor position with the Rhode Island Association of Realtors (“RIAR”) notwithstanding the fact that all such instructors must be approved as qualified by the REC. The petitioner’s resume was forwarded by RIAR to REC along with a letter setting forth the petitioner’s qualifications, REC then reviewed the petitioner’s qualifications and voted to approve him as a qualified instructor. The petitioner did not have any interactions with REC and did not represent himself or RIAR before REC. In the instant matter, the Petitioner represents that he will have no interactions with DOT relative to the Statement of Qualifications. Furthermore, the Petitioner is not presenting his resume to his former agency directly for review, rather it is presented by his private employer as part of a larger packet necessary for the submission of the Statement of Qualifications. The Statement of Qualifications is necessary in order to pre-qualify and allow the Petitioner’s employer to submit bids in the next three to five years for DOT projects as they become available. However, pre-qualification does not guarantee award of such contracts. Accordingly, based upon the above representations, and consistent with the above-cited Advisory Opinion 2009-24, it is the opinion of the Ethics Commission that the inclusion of the Petitioner’s resume by his private employer as part of its Statement of Qualifications does not constitute representation of himself or others for purposes of section 36-14-5(e). Furthermore, the Petitioner may not use any confidential information he obtained while working for the DOT for financial gain. Section 36-14-5(b), (c) & (d). Finally, the Petitioner is encouraged to seek further guidance from the Ethics Commission if and when he has occasion to have dealings with the DOT beyond those outlined in this advisory opinion, within the one-year period following his severance from state service. 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(12) § 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. 2009-24 A.O. 2008-62 A.O. 2006-42 A.O. 2003-51 Keywords: Post-Employment Private Employment Revolving Door