Advisory Opinion No. 2019-69 Rhode Island Ethics Commission Advisory Opinion No. 2019-69 Approved: December 10, 2019 Re: Kevin J. Rabbitt QUESTION PRESENTED : The Petitioner, a former Deputy Chief within the Rhode Island Department of Revenue, Division of Motor Vehicles, Dealer Licensing Office, who retired on September 30, 2019, requests an advisory opinion regarding whether the Code of Ethics prohibits him from working as a private consultant to a local attorney who represents consumers and dealers before the Motor Vehicle Dealers License and Hearing Board. RESPONSE : It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former Deputy Chief within the Rhode Island Department of Revenue, Division of Motor Vehicles, Dealer Licensing Office, who retired on September 30, 2019, is not prohibited by the Code of Ethics from working as a private consultant to a local attorney who represents consumers and dealers before the Motor Vehicle Dealers License and Hearing Board subject, however, to the revolving door provisions of the Code of Ethics. The Petitioner represents that prior to his retirement on September 30, 2019, he was employed for twenty years by the Division of Motor Vehicles (“DMV”), Dealer Licensing Office within the Rhode Island Department of Revenue (“DOR”). During those years he served as an Investigator, Dealer Licensing Officer, and Deputy Chief. He explains that, throughout his tenure, he was responsible for the operation, coordination, and monitoring of a statewide program that regulates the licensure of new and used dealerships, auctions, and leasing companies and enforces compliance with all applicable state laws, rules, and regulations. The Petitioner further explains that he investigated complaints relative to dealerships which included the review and inspection of dealers’ records and the submission of a written report to the Motor Vehicle Dealers License and Hearing Board (“Hearing Board”) on all relative findings. The Hearing Board is a five-member board authorized to hear evidence and make decisions on behalf of the DOR in order to implement the provisions of Rhode Island General Laws Chapters 31-5 and 31-5.1. See R.I. Gen. Laws § 31-5-2.1 and Regulation 280-RICR-30-20-1.3. The Petitioner notes that the Hearing Board is charged with, among other things, the review of license applications and the investigation of complaints. The Petitioner represents that he has been asked by a local attorney, who from time to time represents consumers and dealers before the Hearing Board, to advise him on complaint matters pending before the Hearing Board. The Petitioner states that he is not yet aware of the exact nature of his consulting duties, but he states that his duties may include advising on pertinent rules and regulations, and hearing procedures before the Hearing Board. Based on this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether he may accept a position as a consultant with the local attorney. The Code of Ethics prohibits a public official or employee from representing himself, representing other persons or organizations, or acting as an expert witness before a state or municipal agency of which he is a member or by which he is employed. Section 36-14-5(e)(“section 5(e)”). 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 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016). This prohibition applies not only during the period of employment, but for a period of one year thereafter. Section 36-14-5(e)(4). Section 5(e)’s prohibitions are designed to minimize any undue influence that a former employee may have over his former agency and colleagues by reason of his past 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 that any contacts he had with OHIC were purely ministerial in nature, such as hand delivering documents, reviewing public records, and requesting public information). In addition to section 5(e)’s post-employment restrictions, section 36-14-5(b), (c) and (d) of the Code of Ethics prohibits the use and/or disclosure of confidential information acquired by an official or employee during the course of or by reason of his official employment, particularly for the purpose of obtaining financial 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 2010-8, the Ethics Commission opined that the Chief of the Division of Municipal Finance within the DOR was prohibited by the Code of Ethics from lobbying or otherwise representing a private employer before the DOR and its divisions for a period of one year following his termination of state employment. The petitioner could, however, engage in lobbying of the General Assembly as well as other state agencies in all branches of government. See also A.O.2017-34 (opining that a former Principal Civil Engineer in the Bridge Design Section of the Rhode Island Department of Transportation, while not prohibited from working for a private engineering firm upon his retirement, was prohibited by the Code of Ethics from representing himself or others, including his new private employer, or acting as an expert witness, before the Rhode Island Department of Transportation for a period of one year following the date of severance from his state employment and from using any confidential information he obtained while working for RIDOT for financial gain); A.O. 2017-13 (opining that a former Chief Plan Review Officer with the Rhode Island Division of State Fire Marshal was not prohibited from working for a private engineering and consulting firm specializing in fire protection, but was prohibited by the Code of Ethics from representing himself or others, including his new private employer, or acting as an expert witness, before the State Fire Marshal or its representatives for a period of one year following his state employment and from using any confidential information he obtained while working for the State Fire Marshal for financial gain). Considering the Petitioner’s above representations and consistent with our past advisory opinions in this area, it is the opinion of the Ethics Commission that while the Petitioner is not prohibited by the Code of Ethics from being a private consultant to the local attorney who represents consumers and dealers before the Hearing Board, the Petitioner is prohibited from representing himself or others, including his potential new private employer, or acting as an expert witness, before the DOR or any of its divisions,[1] including the DMV and the Hearing Board, for a period of one year following his state employment. Activities that would constitute representation are generally interactions involving the presentation of information or arguments for the purpose of influencing the judgment of the agency. On the other hand, contacts involving ministerial matters that do not involve a public agency’s discretion or decision-making are not prohibited. Until the expiration of one year following the date of his retirement from state service, the Petitioner is advised, when in doubt, to seek further guidance from the Ethics Commission regarding the Code of Ethics’ potential application to his interactions with state agencies. Additionally, the Petitioner may not use any confidential information he obtained while working for the DMV to financially benefit himself or his business associates. Section 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 : § 36-14-2 § 36-14-5(b) § 36-14-5(c) § 36-14-5(d) § 36-14-5(e) 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5 Related Advisory Opinions : A.O. 2010-8 A.O. 2017-34 A.O. 2017-13 A.O. 2013-28 Keywords : Revolving Door Private Employment Post Employment [1] The DOR oversees the Division of Lottery, the Division of Motor Vehicles, the Division of Municipal Finance, the Division of Taxation, and the Office of Revenue Analysis.