Advisory Opinion No. 2019-72 Rhode Island Ethics Commission Advisory Opinion No. 2019-72 Approved: December 10, 2019 Re: Michael DiBiase QUESTION PRESENTED : The Petitioner, the Director of Administration for the State of Rhode Island, a state appointed position, requests an advisory opinion regarding the application of the revolving door provisions of the Code of Ethics to his impending private employment with the Rhode Island Public Expenditure Council. RESPONSE : It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Director of Administration for the State of Rhode Island, a state appointed position, is prohibited by the Code of Ethics from representing himself or his private employer before the Office of the Governor, the Department of Administration and its divisions, all agencies within the Executive Branch of Government with which he has “substantial involvement” as defined by the Code of Ethics, and all state or municipal boards and/or commissions on which he personally serves or has appointed a designee to serve in his place, until the expiration of one (1) year after leaving his public position. The Petitioner is the Director of Administration for the State of Rhode Island, having been appointed in January of 2015. He explains that he is a member of the Governor’s Cabinet with overall responsibility for the Department of Administration (“DOA”), a shared service agency providing support services such as finance, technology, human resources, facilities and purchasing to other departments and agencies of state government. The Petitioner states that his duties include an overall responsibility for the preparation and execution of the state budget, subject to the Governor’s approval. He further states that in his capacity as Director of Administration he also serves as an ex officio member of various boards and commissions, including the Rhode Island Resource Recovery Corporation, Rhode Island Housing, the State Retirement Board, the Public Finance Management Board, and the State Planning Council. The Petitioner represents that, effective January 15, 2020, he will resign from his position as Director of Administration and assume the position of President and Chief Executive Officer (“CEO”) of the Rhode Island Public Expenditure Council (“RIPEC”). He explains that RIPEC is an independent, non-profit, non-partisan organization dedicated to the advancement of effective, efficient, and equitable government in Rhode Island. The Petitioner further explains that, through its research, RIPEC provides workable solutions to critical public policy issues facing Rhode Island. He states that the President and CEO is responsible for the strategic leadership and effective management of all aspects of RIPEC, which includes the oversight and support of the research agenda as determined by RIPEC’s Board of Directors and the reporting of all findings to RIPEC’s Board of Directors, government officials, and the public. Under the Code of Ethics, a public official or employee may not represent 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). 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). These “revolving door” restrictions apply while the public official is serving and continue for a period of one (1) year thereafter. Section 36-14-5(e)(4). Furthermore, the Code of Ethics prohibits any director or head of a state department from representing himself or any other person before the Office of the Governor or the DOA. Commission Regulation 520-RICR-00-00-1.5.5(B) State Executive/Administrative Revolving Door (36-14-5015) (“Regulation 1.5.5”). Additionally, the Code of Ethics prohibits a person holding any position in the Governor’s Office or the DOA from representing himself or any other person before any other state agency with which he has “substantial involvement” by reason of his official duties. Regulation 1.5.5(A). The term “substantial involvement” is defined to include substantial control, influence or participation in matters involving budget, communications, legal, legislative, or policy matters. Regulation 1.5.5(A)(4). These “revolving door” restrictions apply while the public official is serving and continue for a period of one (1) year thereafter. Regulation 1.5.5(B)(3). The above prohibitions do not extend to the performance of ministerial acts, duties, or functions involving neither adversarial hearings nor the authority to exercise discretion or render decisions. See 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 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). Finally, sections 36-14-5(b), (c), & (d) all prohibit 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 for himself, his employer or business associate. Applying the above provisions of the Code of Ethics 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, who had a substantial budgetary involvement with the Office of the Governor and with Health and Human Services agencies, was prohibited by the Code of Ethics from representing his new employer, the Rhode Island League of Cities and Towns, before the DOA and its divisions, including the Office of Management and Budget; the Office of the Governor; as well as any other state agencies with which he had substantial involvement as part of his public duties, including the Health and Human Services agencies. These prohibitions remained in effect for a period of one (1) year after the petitioner left his public position. See also A.O. 2017-2 (opining that a former Chief Strategy Officer for the Executive Office of Health and Human Services (“OHHS”) who performed the duties of the Director of the Department of Children, Youth and Families (“DCYF”), was not permitted to represent her new private employer before DCYF, OHHS, DOA or the Office of the Governor for a period of one (1) year after leaving state service). Here, the Petitioner, as Director of Administration, is prohibited from representing himself or others, including RIPEC, before the DOA and its divisions and/or departments; the Office of the Governor; and all agencies within the Executive Branch of Government with which he has “substantial involvement” as defined by the Code of Ethics. See section 36-14-5(e) & Regulation 1.5.5(B). The Petitioner is further prohibited by the Code of Ethics from representing himself or others before state or municipal boards and/or commissions on which he personally serves or has appointed a designee to serve in his place, until the expiration of one (1) year after leaving his public position, including but not limited to the Rhode Island Resource Recovery Corporation, Rhode Island Housing, the State Retirement Board, the Public Finance Management Board, and the State Planning Council. These prohibitions extend for a period of one (1) year after leaving state service. 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 matters concerning the Petitioner and/or RIPEC or its members. On the other hand, contacts involving purely personal or ministerial matters that do not involve a public agency’s discretion or decision-making are not prohibited. The Petitioner is cautioned that prohibited interactions could occur at a restaurant, on the phone, in an email or in any social or political gathering. 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. Provided that the Petitioner abides by the above-prohibitions, the Code of Ethics does not prohibit him from lobbying or representing himself or others before other state agencies not under the control or appointing authority of the Office of the Governor including, but not limited to, the Office of General Treasurer, the Office of the Attorney General, the Office of the Secretary of State, the General Assembly, and the Judiciary. Until the expiration of one (1) year following the termination of his public employment, the Petitioner is encouraged to continue consulting with the Ethics Commission as to the Code of Ethics’ potential application to his interactions with state agencies. 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) 520-RICR-00-00-1.5.5 State Executive/Administrative Revolving Door (36-14-5015) 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) Related Advisory Opinions: A.O. 2017-2 A.O. 2017-4 A.O. 2010-23 Keywords: Post-Employment Revolving Door