Advisory Opinion No. 2018-17 Rhode Island Ethics Commission Advisory Opinion No. 2018-17 Approved: March 15, 2018 Re: Matthew T. Jerzyk, Esq. QUESTION PRESENTED: The Petitioner, former legal counsel to the Majority Leader of the Rhode Island House of Representatives, a state employee position, requests an advisory opinion regarding the application of the Code of Ethics, particularly its post-employment/revolving door provisions, to his ability to engage in legal and lobbying practices during the one-year period following his official date of severance from state employment. RESPONSE: The Petitioner, former legal counsel to the Majority Leader of the Rhode Island House of Representatives, a state employee position, is prohibited by the Code of Ethics from lobbying or representing himself or others before the General Assembly for a period of one year following his official date of severance from state employment. However, the Petitioner is not prohibited from lobbying or representing himself or others before other state or quasi-public agencies that do not fall under the legislative branch of government. The Petitioner represents that he served as legal counsel to the House Majority Leader until February 23, 2018. In his private capacity, the Petitioner is a practicing attorney who has also been the City Solicitor for the City of Central Falls since 2014. The Petitioner asks whether the Code of Ethics prohibits him from 1) representing clients before state agencies, including but not limited to, the Rhode Island Department of Health, Rhode Island Department of Business Regulation, Office of the Governor, Public Utilities Commission and the Rhode Island Lottery; 2) representing clients before quasi-state agencies, including but not limited to, Rhode Island Housing, Infrastructure Bank, Rhode Island Airport Corporation, Narragansett Bay Commission, and Rhode Island Public Transit Authority; 3) lobbying either a state agency or a quasi-state agency; and 4) having employment or a contractual relationship with companies who lobby the General Assembly. The Code of Ethics contains several “post-employment” and “revolving door” provisions that apply to current and former public officials in various circumstances. The instant request for an advisory opinion involves the application of section 36-14-5(e) (“section 5(e)”) of the Code of Ethics, which provides that “[n]o person subject to the Code of Ethics shall . . . [r]epresent any other person before any state or municipal agency of which he or she is a member or by which he or she is employed . . . for a period of one year after he or she has officially severed his or her position with said state or municipal agency[.]” R.I. Gen. Laws § 36-14-5(e)(2) & (4). In previous advisory opinions, the Commission has applied section 5(e) to both members and employees of the General Assembly. Most recently, in Advisory Opinion 2017-19, a former President of the Senate was prohibited by the Code of Ethics from representing her new employer before the Rhode Island General Assembly for a period of one year after leaving public office. However, the Code of Ethics did not prohibit the petitioner from representing her employer before any municipality or the executive or judicial branches of Rhode Island government. Similarly, in Advisory Opinion 2004-4, a 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 5(e), the Commission opined that although the petitioner would be permitted to lobby the executive branch immediately upon 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. See also A.O. 2003-2 (State Representative who was privately employed by the American Lung Association was prohibited by section 5(e) from lobbying or otherwise representing his employer before either chamber of the General Assembly). The Commission has also applied section 36-14-5(e)’s post-employment lobbying restrictions to persons serving in other branches of Rhode Island government. See, e.g., A.O. 2006-56 (Chief of Staff/Legislative Director for the Office of the Attorney General may engage in lobbying of the General Assembly and federal, state and municipal governmental agencies upon severing his employment with the Attorney General, but shall not engage in lobbying the Office of Attorney General for a period of one year); A.O. 2005-6 (former Legislative Director for the Governor may engage in lobbying of the General Assembly as well as state and municipal agencies other than the Office of the Governor); A.O. 2003-56 (former Director of Legislative and Governmental Affairs in the Office of the Lieutenant Governor may lobby the General Assembly and other state agencies in his new private employment, but shall not lobby the Office of the Lieutenant Governor for one year after leaving his employment there); A.O. 2003-32 (former Director of Administrative Records in the Office of the Secretary of State may lobby the General Assembly and other state agencies in his private employment, but shall not lobby the Office of the Secretary of State). In the instant matter, the Petitioner states that he is aware that the Code of Ethics prohibits him from representing himself or others or from lobbying before the entire General Assembly until a full year has passed from the date of severance from his state employment. Provided he abides by that prohibition, the Code of Ethics does not prohibit him from lobbying other state or quasi-public agencies that do not fall under the legislative branch of government including, in particular, the Rhode Island Department of Health, Rhode Island Department of Business Regulation, Office of the Governor, Public Utilities Commission, Rhode Island Lottery, Rhode Island Housing, Infrastructure Bank, Rhode Island Airport Corporation, Narragansett Bay Commission, and Rhode Island Public Transit Authority. Furthermore, the Petitioner is not prohibited from being employed by, or having a contractual relationship with, organizations that lobby the General Assembly within the one-year period following his official date of severance from state employment, provided that he neither participates in the lobbying activities nor has an equity or ownership interest in the organization or its lobbying-related profits or income. See A.O. 97-40 (opining that an attorney member of the Cranston City Council and other members of his firm were prohibited from appearing before a Cranston Probate judge over which the petitioner exercised fiscal and jurisdictional control because the petitioner had a financial interest in the professional activities of his partner and/or associates). See also A.O. 96-22; A.O. 95-108; and A.O. 90-83 (concluding that where the petitioner, an attorney, is precluded from representation, his law firm partners/members are also prohibited from such representation as they stand in the place of the petitioner/attorney). The Code of Ethics does not prohibit the Petitioner from having purely personal or ministerial interactions with General Assembly members or staff, provided that such interactions and conversations do not involve General Assembly decision-making over matters involving or financially impacting the Petitioner himself or his clients. However, the Petitioner is cautioned to be mindful of section 5(e)’s limitations any time he interacts with General Assembly members or staff over the next year. Prohibited interactions could occur at a restaurant, on the phone, in an email or in any social or political gathering where the Petitioner interacts with a General Assembly member or employee to advance his or his clients’ interests or legislative agenda. It is the content of a discussion, rather than its venue, that is most relevant in applying the Code of Ethics’ revolving door/post-employment restrictions. 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(e) Related Advisory Opinions: A.O. 2017-19 A.O. 2006-56 A.O. 2005-6 A.O. 2004-4 A.O. 2003-56 A.O. 2003-32 A.O. 2003-2 A.O. 97-40 A.O. 96-22 A.O. 95-108 A.O. 90-83 Keywords: Lobbying Post-Employment Private Employment Revolving Door