Advisory Opinion No. 2020-11 Rhode Island Ethics Commission Advisory Opinion No. 2020-11 Approved: February 11, 2020 Re: Rebecca Boss QUESTION PRESENTED: The Petitioner, the former Director of the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals, a state appointed position, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places upon her new private employment with CODAC Behavioral Healthcare, Inc., a provider of outpatient services for opioid use disorder, other substance use disorders, and concurrent behavioral health challenges. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the former Director of the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals, a state appointed position, is prohibited by the Code of Ethics from using confidential information received through her public employment to benefit her new employer, and/or from representing herself or others, including her new employer, before the entire Executive Office of Health and Human Services, the Department of Administration, or the Office of the Governor for one (1) year after leaving her state employment. The Petitioner represents that she was appointed to the position of Director of the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (“BHDDH”) in May of 2017 by the Governor. The Petitioner states that she was a member of the Governor’s Cabinet, with overall responsibilities for BHDDH including its three operating divisions and central management, adding that she also served as the Governing Body for Eleanor Slater Hospital. She explains that BHDDH is responsible for the planning, implementation, and oversight of services for individuals with mental illness, substance use disorders and developmental disabilities, as well as oversight of the provision of behavioral health prevention services statewide. The Petitioner states that BHDDH lies within the Rhode Island Executive Office of Health and Human Services (“EOHHS”), which also encompasses the Rhode Island Department of Children, Youth and Families (“DCYF”), the Department of Health (“DOH”), and the Department of Human Services (“DHS”). The Petitioner states that, effective January 31, 2020, she resigned from her position as the Director of BHDDH to assume the position of Chief Operating Officer (“COO”) and Vice President of Strategic Development with CODAC Behavioral Health, Inc. (“CODAC”), Rhode Island’s oldest and largest provider of outpatient services for opioid use disorders, other substance use disorders, and concurrent behavioral health challenges. The Petitioner explains that CODAC has nine (9) locations throughout Rhode Island which are licensed by BHDDH, adding that CODAC has several funding streams, including federal grants administered though BHDDH. The Petitioner states that, in her new position at CODAC, she will lead strategic development initiatives to further CODAC’s organizational mission beyond state borders, specifically Massachusetts, for service delivery. She is further responsible for the oversight of CODAC’s overall strategic development and programming implementation, and the supervision of the clinical and operational aspects of CODAC. The Petitioner notes that, as part of the executive leadership team, she is responsible for establishing a national consultation and training center. Cognizant of the Code of Ethics, the Petitioner states that she will refrain from representing herself, CODAC, or any other person before BHDDH, EOHHS, and before the Governor’s Office or the Department of Administration (“DOA”) for one (1) year following her resignation from BHDDH unless she receives a written approval from the Ethics Commission. She further states that, because CODAC is licensed and receives funds from BHDDH, she will recuse from any activities related to licensing or contracting and that licenses and contracts will be approved and signed by the Chief Executive Officer at CODAC. Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding what limitations, if any, the Code of Ethics places upon her new private employment with CODAC. Under the Code of Ethics, a public official may not represent herself or any other person, or act as an expert witness, before any state or municipal agency of which she is a member or by which she is employed. R.I. Gen. Laws § 36-14-5(e)(1)-(3). Furthermore, the Code of Ethics prohibits any director or head of a state department from representing herself or any other person before the Office of the Governor or the Department of Administration (“DOA”). Commission Regulation 520-RICR-00-00-1.5.5(B) State Executive/Administrative Revolving Door (36-14-5015) (“Regulation 1.5.5(B)”). These prohibitions are absolute and apply to the entire agency, including all of its offices, sections, programs or divisions and last while the public official is serving and for a period of one (1) year thereafter. Section 36-14-5(e)(4); Regulation 1.5.5(B)(3). Additionally, sections 36-14-5(b)-(d) prohibit the use and/or disclosure of confidential information acquired by an official or employee during the course of, or by reason of, her official employment, particularly for the purpose of obtaining financial gain. These “revolving door” restrictions were enacted so as to minimize any undue influence a former public official might have in a matter before her former agency or, in the case of an executive branch department head, before the DOA or the Office of the Governor. In the instant matter, the Petitioner’s proposed measures laid out above for avoiding conflicts of interest during the one (1) year period after leaving her employment with BHDDH are not only appropriate, but are also required under the Code of Ethics. Accordingly, consistent with the requirements of the above sections of the Code of Ethics, it is the opinion of the Ethics Commission that the Petitioner shall not represent herself, CODAC, or any other person or entity, or act as an expert witness before the entire EOHHS and all of its departments, divisions, offices, sections, and programs including, but not limited to, BHDDH, DCYF, DHS, DOH, and Eleanor Slater Hospital; DOA; or the Office of the Governor for a period of one (1) year after leaving state service. See A.O. 2017-2 (opining that the Code of Ethics restricted the outgoing Chief Strategy Officer for the EOHHS from using confidential information received through her public employment to benefit her new employer, or from representing her new employer before EOHHS, DCYF, DOA or the Office of the Governor for one year after leaving her state employment); A.O. 2016-14 (opining that a retiring engineer with the Department of Administration was not prohibited from engaging in private employment as a structural engineer provided that he did not represent his private clients before the Department of Administration or its divisions for one year after leaving state service). Activities that would constitute representation generally include the presentation of information or arguments for the purpose of influencing the judgment of the agency on matters concerning the Petitioner and/or her new employer. The Petitioner is cautioned that prohibited interactions are not limited to business meetings, and 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. On the other hand, contacts involving purely personal or ministerial matters that do not involve discretion or decision-making on the part of the above-cited agencies are not prohibited. Lastly, until the expiration of one (1) year following the date of her severance 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 her interactions with the above-cited 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: § 36-14-5(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) Related Advisory Opinions: A.O. 2017-2 A.O. 2016-14 Keywords: Post-Employment Revolving Door State Executive/Administrative Revolving Door