Advisory Opinion No. 2020-32

Rhode Island Ethics Commission

Advisory Opinion No. 2020-32

Approved: August 18, 2020

QUESTION PRESENTED:

The Petitioner, the former Senior Projects Review Coordinator for the Rhode Island Historical Preservation & Heritage Commission, a state employee position, requests an advisory opinion regarding the application of the revolving door provisions of the Code of Ethics to his potential employment with a private cultural resources firm.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the former Senior Projects Review Coordinator for the Rhode Island Historical Preservation & Heritage Commission, 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 Rhode Island Historical Preservation & Heritage Commission 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 Senior Projects Review Coordinator to financially benefit himself or his private employer.

The Petitioner is the former Senior Projects Review Coordinator for the Rhode Island Historical Preservation & Heritage Commission (“RIHPHC”). The RIHPHC is the state office for historic preservation and heritage programs and, among other things, “identifies and protects historic and prehistoric sites, buildings, and districts by nominating significant properties to the National Register of Historic Places and the State Register; administering grants, loans, and tax credits for rehabilitation of historic buildings; reviewing federal and state projects that affect cultural resources; and regulating archaeological exploration on state land and under state territorial waters.”[1] The Petitioner states that he worked at the RIHPHC between December 2019 and April 2020. He identifies among his former duties the review of proposed federal and state projects for purposes of determining whether said projects might affect the qualification of certain historic properties for inclusion in the National Register of Historic Places. He adds that he also reviewed

grant applications from the Federal Emergency Management Agency (“FEMA”)[2], and/or certain of its subcontractors. The Petitioner explains that the grant applications sought a contribution from the RIHPHC in the amount of 25% of the cost to repair buildings and/or monuments following a local disaster, with the remaining 75% of the cost to be furnished by FEMA using federal disaster funds.

The Petitioner states that he recently applied for a position with Dewberry, a private cultural resources contractor with offices located in Harrisburg, Pennsylvania. He further states that Dewberry performs subcontract work for FEMA. The Petitioner represents that his responsibilities as a Dewberry employee would include writing grant applications for municipalities and state agencies, and that he could potentially be tasked with writing and submitting a grant application to the RIHPHC seeking a contribution from that agency to supplement funds provided by FEMA to perform repair work to structures in Rhode Island following a disaster. The Petitioner reiterates that he used to review similar grant applications when he was employed by the RIHPHC, but states that had never reviewed a grant application submitted by Dewberry, nor does he recall Dewberry having appeared before the RIHPHC during the period that he was employed there. He states that his having to physically appear before the RIHPHC in association with a grant application that he had written is possible, though unlikely, but that his name would appear on any grant application he had prepared.

The Petitioner explains that a representative from Dewberry has asked him to seek the instant advisory opinion from the Ethics Commission for purposes of determining whether, and to what extent, the Petitioner might be prohibited from performing work in the State of Rhode Island in the event he was to be hired by Dewberry. 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 potential private employment with Dewberry.

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 2020-27 to the former Administrator of Project Management for the Rhode Island Department of Transportation (“RIDOT”), opining that he was prohibited from representing himself or his private employer, or from acting as an expert witness, before the RIDOT 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 Administrator of Project Management to financially benefit himself or 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).

Activities that would constitute representation and/or acting as an expert 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 Dewberry and the RIHPHC and, in this case, the submission of a grant application on which the Petitioner’s name appears. 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. On the other hand, contacts involving purely personal or ministerial matters that do not involve discretion or decision-making on the part of the RIHPHC are not prohibited.

Here, in consideration of the Petitioner’s factual representations, the applicable provisions of the Code of Ethics, and consistent with our past advisory opinions addressing this issue, 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 RIHPHC for a period of one year following the severance of his employment with that agency. This includes not only the Petitioner’s physical appearance before the RIHPHC, however unlikely, but also the submission of a grant application to the RIHPHC by Dewberry on which the Petitioner’s name appears. Further, the Petitioner may not use any confidential information he obtained while working for the RIHPHC to obtain financial gain for himself or his new employer.

Lastly, until the expiration of one year following the date of his departure 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. 2020-27

A.O. 2017-34

A.O. 2017-13

Keywords:

Revolving door