Advisory Opinion No. 2018-54 Rhode Island Ethics Commission Advisory Opinion No. 2018-54 Approved: November 20, 2018 Re: Glenn Cabral QUESTION PRESENTED: The Petitioner, the Chief of Electrical and Construction Projects with the Rhode Island Department of Transportation, Highway and Bridge Maintenance Division, a state employee position, who also serves as an independent contractor for the East Providence Police Department performing traffic detail work, requests an advisory opinion regarding whether the Code of Ethics prohibits him from working as a traffic control assistant for Department of Transportation construction projects occurring within the City of East Providence on state-owned roadways, given his employment with the Department of Transportation. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Chief of Electrical and Construction Projects with the Rhode Island Department of Transportation, Highway and Bridge Maintenance Division, a state employee position, who also serves as an independent contractor for the East Providence Police Department performing traffic detail work, is prohibited by the Code of Ethics from working as a traffic control assistant for Department of Transportation construction projects occurring within the City of East Providence on state-owned roadways because the Petitioner’s daily interactions with the Department of Transportation would not be purely ministerial in nature. The Petitioner is the Chief of Electrical and Construction Projects with the Rhode Island Department of Transportation (“DOT”), Highway and Bridge Maintenance Division (“Division”). The Petitioner explains that the Division is responsible for the oversight of all maintenance and repairs to electrical systems along state highways and roads. Additionally, the Division oversees the fabrication process and installation of traffic-related signage around the state. The Petitioner states that his work hours are Monday through Friday, 7:00 a.m. to 2:30 p.m. The Petitioner represents that he was recently appointed by the East Providence City Council to a contract position with the East Providence Police Department (“Police Department”), Traffic Control Division, which is paid for by the City of East Providence. He states that his duties include providing additional safety assistance to utility companies and contractors conducting repairs and maintenance on city-owned roadways by reviewing and if necessary correcting the traffic control measures established by the construction team. He further explains that if a police cruiser is used, he will park it behind the construction area to provide additional safety and light to the construction crew. The Petitioner notes that occasionally the DOT requests that the Police Department provide detail officers to assist with construction projects occurring on interstate roadways. The Petitioner explains that when the Police Department does not have enough police officers to provide a traffic detail, the Police Department utilizes outside contractors, such as the Petitioner, from a rotating list. He represents that at the end of a DOT-requested traffic detail shift, the DOT project manager on duty fills out and signs a detail slip (“detail slip”). The detail slip is also signed by the detail officer/assistant and contains the name and signature of the traffic detail officer/assistant, the hours worked, and whether a police cruiser was utilized. The signed detail slip is used by the Police Department for billing purposes. The Petitioner represents that he has been recusing from all detail work related to the DOT, that he will continue to recuse from detail work that is related to his Division, and that his traffic detail work is and will continue to be performed outside of his normal DOT work hours. However, given this set of facts, he requests the guidance of the Ethics Commission regarding whether he may begin performing detail work on behalf of the Police Department for DOT construction projects that do not include his Division at the DOT. The Code of Ethics prohibits a public official or employee 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.[1] A person represents himself or another person before an agency when he 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). These prohibitions continue for a period of one year after the public official or employee has officially severed his position with said state or municipal agency. Section 36-14-5(e)(1) & (4). Section 5(e)’s prohibitions are designed to minimize any undue influence that a former public employee may have over his former agency and colleagues by reason of his 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). The Commission has issued numerous advisory opinions interpreting section 36-14-5(e)(4). In Advisory Opinion 2017-4, for example, the Ethics Commission opined that a former Deputy Budget Officer in the Office of Management and Budget, a division of the DOA, was prohibited by the Code of Ethics from representing his new employer before, among others, the DOA and its divisions, including the Office of Management and Budget. See also A.O. 2015-37 (opining that the former Administrator of Sustainable Watersheds for the Rhode Island Department of Environmental Management (“DEM”), who accepted private employment at Grow Smart Rhode Island, was restricted by the Code of Ethics from representing Grow Smart or any other person or entity before his former state agency for a period of one year following his official date of severance from state employment, as well as from disclosing any confidential information that he may have obtained during the course of his state employment); 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 consisted of filing medical assistance applications on behalf of 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). Here, based on the Petitioner’s representations and the review of prior advisory opinions, it is the opinion of the Ethics Commissions that section 5(e) of the Code of Ethics prohibits the Petitioner from representing himself or others before the DOT and its divisions. Particularly, the Petitioner’s interactions with the DOT, including the DOT’s review and approval of the Petitioner’s detail slip confirming the number of hours worked by the Petitioner, and the review by the Petitioner of the traffic control measures established by the DOT construction team, are not purely ministerial but rather substantive in nature. Accordingly, the Petitioner is prohibited by the Code of Ethics from working as a traffic control assistant for Department of Transportation construction projects occurring within the City of East Providence on state-owned roadways. 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) § 36-14-2(13) § 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. 2017-4 A.O. 2015-37 A.O. 2013-34 A.O. 2008-62 Keywords: Revolving Door [1] In May 2018, the Ethics Commission codified the Code of Ethics into the Rhode Island Code of Regulations (“RICR”), a uniform state code containing the rules and regulations of the various Rhode Island agencies. In order to do so, the Ethics Commission reformatted and renumbered the Code of Ethics. As a result, Regulation 36-14-5016 now corresponds to Regulation 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016).