Advisory Opinion No. 2020-27 Rhode Island Ethics Commission Advisory Opinion No. 2020-27 Approved: July 14, 2020 Re: David W. Fish QUESTION PRESENTED: The Petitioner, the former Administrator of Project Management for the Rhode Island Department of Transportation, a state employee position, requests an advisory opinion regarding the application of the revolving door provisions of the Code of Ethics to his impending employment with a private engineering firm. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the former Administrator of Project Management for the Rhode Island Department of Transportation, a state employee position, is prohibited by the Code of Ethics from representing himself or others, including his private employer, or from acting as an expert witness, before the Department of Transportation until the expiration of one year following the date of severance from his state employment. The Petitioner is further prohibited by the Code of Ethics from using or disclosing any confidential information he obtained while working as the Administrator of Project Management to financially benefit himself or his private employer. The Petitioner is the former Administrator of Project Management for the Rhode Island Department of Transportation (“RIDOT”). He states that he retired from that position on April 18, 2020, after having worked at the RIDOT for more than 35 years. The Petitioner cites among his immediate former duties the management of the RIDOT’s Capitol Program. More specifically, the Petitioner states that he led the managers of the following sections: Project Management, Construction Management, Materials Testing & Compliance, Project Management Support, and Scoping & Compliance. He adds that the managers of the aforementioned sections supervise members of the RIDOT staff who deal directly with numerous design consultants and construction contractors. The Petitioner represents that he set policy, procedures, and guidelines for the interaction between RIDOT employees and various design consultants and contractors. He adds that he would sometimes issue advisory opinions and, on rare occasions, intervene and render decisions when issues could not be resolved between RIDOT employees and private sector consultants and contractors. The Petitioner states that he reported directly to the RIDOT’s Chief Operating Officer who, in turn, reports directly to the RIDOT’s Director of Transportation. The Petitioner states that he recently accepted the position of Senior Transportation Manager with AECOM, a private engineering firm in Providence. He further states that his new duties will include providing quality control and assurance on proposals and design plans and reviewing contract documentation. He adds that he will also assist with the preparation of proposals for the solicitation of work on behalf of AECOM. The Petitioner explains that AECOM regularly provides design consulting services for the RIDOT and, while he was not directly involved with the RIDOT’s negotiation and award of any engineering contracts to AECOM, he was often an approval signatory to the recommendations made by staff and section managers. He further explains that AECOM regularly partners with other private contractors as a sub-contractor, in which case a representative from AECOM might have occasion to appear before the RIDOT in that capacity. The Petitioner represents that, in conformance with AECOM’s own policies and procedures, he will not be involved with RIDOT projects for a period of one year following the severance of his employment with that agency. The Petitioner further represents that he is expected to work on projects involving the Departments of Transportation in Massachusetts, New Hampshire, and Connecticut. Nonetheless, the Petitioner states that a representative of AECOM’s Human Resources Department has asked the Petitioner to seek the instant advisory opinion from the Ethics Commission. It is in the context of these facts that the Petitioner seeks advice from the Ethics Commission regarding the application of the revolving door provisions to his impending private employment with AECOM. The Code of Ethics prohibits a public employee from representing himself or any other person before any state agency by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1) & (2) (“section 5(e)”). A “person” is defined as an individual or business entity. Section 36-14-2(7). This prohibition extends for a period of one year after the public employee has officially severed his position with the agency. Section 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 his former agency and colleagues by reason of his past employment there. Under the Code of Ethics, a person represents himself or another person before a state agency if “he participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of the agency in his [] own favor or in favor of [another] person.” Section 36-14-2(12) and (13); Commission Regulation 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016). Additionally, section 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 5(e)(4)’s requirements with respect to former state employees interacting with their former agencies during the one-year period following the severance of their state employment. Most recently, the Ethics Commission issued Advisory Opinion 2020-6 to the Vice President of Business Development at the Rhode Island Commerce Corporation (“Commerce Corporation”), opining that he was prohibited from representing himself or his private employer before the Commerce Corporation until the expiration of one year after he had officially severed his position with that agency. The Ethics Commission also opined that the petitioner was further prohibited from using any confidential information he obtained while working as the Vice President of Business Development to financially benefit himself of his private employer. 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 (“RIDOT”), 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 from acting as an expert witness, before the RIDOT 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 the 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 the severance of his state employment, and from using any confidential information he obtained while working for the State Fire Marshal for financial gain). The Ethics Commission commends AECOM for its policies and procedures on revolving door matters, and to its commitment, and that of the Petitioner, to ensure that the Petitioner will not represent himself or others before the RIDOT for at least one year following his retirement from that agency. 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 his new employer. Such prohibited activities include, but are not limited to, attendance and participation at meetings between his new employer and the RIDOT. On the other hand, contacts involving purely personal or ministerial matters that do not involve discretion or decision-making on the part of the RIDOT are not prohibited. 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 at 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’ post-employment revolving door restrictions. Here, in consideration of the Petitioner’s factual representations, the applicable provisions of the Code of Ethics, and consistent with our past advisory opinions in this area, it is the opinion of the Ethics Commission that the Petitioner is prohibited by the Code of Ethics from representing himself or others, including his new private employer, or from acting as an expert witness, before the RIDOT for a period of one year following the severance of his employment with that agency. Further, the Petitioner may not use any confidential information he obtained while working for the RIDOT to obtain financial gain for himself or his new employer. Lastly, 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. 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(7) § 36-14-2(12) § 36-14-2(13) § 36-14-5(c) § 36-14-5(e) 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) Related Advisory Opinions: A.O. 2020-6 A.O. 2017-34 A.O. 2017-13 Keywords: Revolving door