Advisory Opinion No. 2019-50 Rhode Island Ethics Commission Advisory Opinion No. 2019-50 Approved: August 20, 2019 Re: Brenda Dann-Messier QUESTION PRESENTED: The Petitioner, the former Postsecondary Education Commissioner, a state appointed position, requests an advisory opinion regarding whether she is prohibited by the Code of Ethics from providing coaching services to representatives from Rhode Island agencies on behalf of her private employer. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the former Postsecondary Education Commissioner, a state appointed position, is not prohibited by the Code of Ethics from providing coaching services to representatives from Rhode Island agencies on behalf of her private employer. However, the Petitioner is prohibited by the Code of Ethics from using any confidential information she obtained during her public employment to financially benefit herself or her private employer. In 2017, the Petitioner was appointed by the Council for Postsecondary Education (“Council”) to a three year term as the Postsecondary Education Commissioner (“Commissioner”) for the Rhode Island Office of the Postsecondary Commissioner (“RIOPC”). The mission of the RIOPC is to support the work of the Board of Education and the Council in “providing an excellent, accessible and affordable system of higher education designed to improve the overall educational attainment of the citizens of Rhode Island, support economic development, and enrich the civic, social and cultural life of all living in the state of Rhode Island.”[1] The Petitioner states that, in fulfilling her role as Commissioner, she worked closely with the presidents of the state’s higher education institutions to determine, among other things, the benefits or disadvantages of proposed new programs, departments, and courses of study. The Petitioner further states that, during her tenure as Commissioner, representatives from the STRADA Education Network (“STRADA”) contacted her to express an interest in supporting RIOPC’s postsecondary agenda.[2] The Petitioner represents that the Governor of Rhode Island met with representatives from STRADA, resulting in STRADA’s suggestion that the State of Rhode Island (“State”) apply for a grant from STRADA, which the State did. The Petitioner states that on May 17, 2019, sometime after the Governor had met with representatives from STRADA, the Petitioner left her position as Commissioner to begin her current part-time private employment as a Senior Advisor for the Education Strategy Group (“ESG”). The ESG is a national consulting firm that works to support states, national organizations, and foundations committed to dramatically improving the capacity and performance of the U.S. education system.[3] The Petitioner further states that STRADA has asked the ESG to help the State broaden and strengthen its grant application, given that the application’s focus was somewhat limited. Representatives from the ESG, including the Petitioner, are assisting the State with its grant application, which is due August 9, 2019, and scheduled for consideration by STRADA’S Board of Directors in September of 2019. The Petitioner explains that, if the State receives grant funding from STRADA, then STRADA will want to engage and compensate the ESG to provide ongoing coaching to representatives from State agencies who will be tasked with accomplishing the objectives of the grant (“State Team”). She adds that those State agencies include, but are not limited to, the Department of Education, the Department of Corrections, the Department of Labor and Training, and the RIOPC. The Petitioner states that, if the State receives grant funding from STRADA, coaching for the State Team would be expected to start immediately. The Petitioner anticipates that, as Senior Advisor for the ESG, she would be tasked with providing four to six hours of coaching each week to the State Team. She explains that, while STRADA would compensate the ESG for coaching the State Team, the Petitioner would perform the coaching as part of her regular duties at the ESG for which she already receives a set monthly salary from the ESG. The Petitioner affirmatively represents that she would not be interacting with the State Team for purposes of influencing any decision by them or their respective agencies, but rather, her interaction would be for coaching purposes only. Given this set of facts, the Petitioner asks the Ethics Commission for guidance regarding whether she is prohibited by the Code of Ethics from providing coaching services to representatives from Rhode Island agencies on behalf of her private employer. The Code of Ethics prohibits a public employee from representing herself or any other person before any state agency by which she is employed. R.I. Gen. Laws § 36-14-5(e)(1) & (2). This prohibition extends for a period of one year after the public employee has officially severed her position with the agency. Section 36-14-5(e)(4). The “revolving door” language of section 5(e) is designed to minimize any undue influence that a former employee may have over her former agency and colleagues by reason of her past employment there. The definition section of the Code of Ethics provides that a person represents herself before a state agency if “she participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of the agency in [] her own favor.” Section 36-14-2(12); Commission Regulation 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016). In addition to section 5(e)’s post-employment restrictions, subsection 36-14-5(c) prohibits the use and/or disclosure of confidential information received through one’s public employment for pecuniary gain. The Ethics 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 state employment. For example, in Advisory Opinion 2016-9, the Ethics Commission opined that a former Principal Planner with the Division of Planning in the Department of Administration (“DOA”) was not prohibited by the Code of Ethics from working on a project for his private employer that involved a grant managed by the Rhode Island Department of Health. After severing his state employment, that petitioner began private employment as a project planner for the Horsely Witten Group, Inc. (“HW”), an environmental science and engineering firm that had entered into a contract with the Town of Bristol (“Bristol”) to manage the public engagement and planning work for a “Health Equity Zone” in Bristol. As an employee of HW, the petitioner was to help Bristol build a coalition of local residents and stakeholders interested in improving public health; develop a baseline analysis of current health trends and needs; and draft and finalize a work plan to implement projects that would meet those needs. The work was being funded through a grant from the United States Centers for Disease Control and Prevention (“CDC”) which was being managed by the Rhode Island Department of Health (“DOH”). In his former capacity as a Principal Planner with the Division of Planning, the petitioner had worked with representatives of DOH on a variety of initiatives where public health and planning intersected. In opining that the petitioner was not prohibited by the Code of Ethics from working for HW under its contract with Bristol, the Ethics Commission reasoned that Bristol, as the recipient of a CDC grant, had a contractual relationship with DOH. However, HW was not in contractual privity with DOH. As such, the petitioner’s potential ministerial contacts with DOH while working on HW’s contract with Bristol did not implicate the revolving door provisions contained in section 5(e). See also A.O. 2010-23 (opining that the former Chief Administrative Officer of the Rhode Island Board of Medical Licensure and Discipline for the Department of Health, who was currently employed as the Chief Medical Officer for Landmark Medical Center, was not prohibited by the Code of Ethics from reporting information to, as may have been required by state statute or regulation, or from making information inquiries to the Department of Health, since he would not be “representing” himself or another before his former agency, as that term is defined in the Code of Ethics); A.O. 2006-42 (opining that a 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’ . . . interests before his former agency for a period of one year following his official severance of employment, and that he did not disclose confidential information obtained during the course of his state employment). Here, the State is in the process of applying for a grant from STRADA. In the event the grant is awarded, STRADA wants to engage and compensate the ESG to provide coaching services to the State Team. The Petitioner, a former state employee, is now a salaried employee of the ESG and would be the one to coach the State Team. While STRADA would compensate the ESG for coaching the State Team, the Petitioner would perform the coaching as part of her regular duties as a salaried employee of the ESG. If STRADA awards grant funding to the State, the relationship equivalents of the contractual privity described in Advisory Opinion 2016-9 would be between STRADA and the State (not the Petitioner or the ESG and the State) and STRADA and the ESG (not the State and the ESG). The Petitioner would not be interacting with the State Team for purposes of influencing any decision by them or their respective agencies. She would simply be assisting the State Team with achieving its objectives under the grant. Accordingly, it is the opinion of the Ethics Commission that, based upon the express representations made by the Petitioner, section 5(e)’s revolving door restrictions do not extend to the Petitioner’s providing coaching services to the State Team in her private capacity as a salaried employee of the ESG under a grant awarded to the State by STRADA. However, the Petitioner is prohibited by the Code of Ethics from using any confidential information she obtained while working as the Commissioner to financially benefit herself or the ESG. 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(c) § 36-14-5(e) 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5006) Related Advisory Opinions: A.O. 2016-9 A.O. 2010-23 A.O. 2006-42 Keywords: Post-Employment Private Employment Revolving Door [1] https://www.riopc.edu/page/OPC%20mission/ (last accessed on August 5, 2019). [2] The mission of STRADA is to improve lives by forging clearer and more purposeful pathways between education and employment. https://www.stradaeducation.org/mission/ (last accessed on August 6, 2019). [3] Edstrategy.org/who-we-are/work-with-us/ (last accessed on August 5, 2019).