Advisory Opinion No. 2020-6 Rhode Island Ethics Commission Advisory Opinion No. 2020-6 Approved: January 28, 2020 Re: Nathaniel R. Tingley QUESTION PRESENTED: The Petitioner, the Vice President of Business Development at the Rhode Island Commerce Corporation, a state employee position, requests an advisory opinion regarding what restrictions, if any, the Code of Ethics places upon his potential private employment with Ørsted, a Denmark-based renewable energy company. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Vice President of Business Development at the Rhode Island Commerce Corporation, a state employee position, is prohibited by the Code of Ethics from representing himself or his private employer before the Commerce Corporation until the expiration of one (1) year after he has officially severed his position with that agency. The Petitioner is further prohibited by the Code of Ethics from using any confidential information he obtained while working as the Vice President of Business Development to financially benefit himself or his private employer. The Petitioner has been employed as the Vice President of Business Development at the Rhode Island Commerce Corporation (“Commerce Corporation”) since May of 2016. He explains that the Commerce Corporation is a quasi-public agency that serves as a government and community resource to help businesses expand in, and relocate to, Rhode Island and offers business assistance, access to funding, and red tape reduction for companies of all sizes. As the Vice President of Business Development, the Petitioner helps businesses expand in Rhode Island and attracts out-of-state businesses to Rhode Island. The Petitioner represents that he is being considered for a position with Ørsted, a Denmark-based renewable energy company that, in November of 2018, acquired Deep Water Wind, the developer of America’s first offshore wind farm located off the coast of Block Island, Rhode Island. The Petitioner states that Ørsted is constructing another offshore wind farm, known as the Revolution Wind project, to be located about 15 miles off the coast of Rhode Island. Ørsted has pledged $4.5 million to support offshore wind education and supply chain development for the growing offshore wind industry in Rhode Island with a $3 million investment in higher education around offshore wind programs led by the University of Rhode Island (“URI”), a national leader in ocean engineering, environmental science and other marine-related fields. See Press Releases, https://www.ri.gov/press/view/35709. Furthermore, Ørsted will invest an additional $1.5 million, designated to the Commerce Corporation and the Rhode Island Department of Labor and Training (“DLT”), to support the development of Rhode Island’s offshore wind supply chain and workforce. These investments will position Rhode Island to remain a leader in the growing American offshore wind industry. Id. The Petitioner states that the Commerce Corporation did not provide Ørsted with any financial incentives for its presence in Rhode Island adding, however, that Ørsted and the Commerce Corporation have executed a Memorandum of Understanding (“MOU”) which outlines how Ørsted and the Commerce Corporation will partner in economic development. The Petitioner further states that he helped Ørsted with establishing its Innovation Hub and supply chain in Rhode Island, that he is a part of a team that is involved in monthly meetings with Ørsted concerning supply chain development and project status, and that, once hired by Ørsted, it is envisioned that he would continue to serve as a liaison between his new employer and the Commerce Corporation. The Petitioner explains that his position with Ørsted would require him to manage Ørsted’s project in Rhode Island and ensure that Ørsted fulfills its obligations under the MOU. The Petitioner expects that less than 10 percent of his duties with Ørsted would require interactions with the Commerce Corporation. Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding what restrictions, if any, the Code of Ethics places upon his potential private employment with Ørsted. 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 2020-4 to an employee of the Rhode Island Department of Health (“DOH”) opining that the petitioner was prohibited from representing himself or his private employer before the DOH until the expiration of one (1) year after he has officially severed his position with that agency. 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 (“DOT”), 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 DOT for a period of one (1) year following the date of severance from his state employment and from using any confidential information he obtained while working for DOT 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). Here, considering the Petitioner’s representations, 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 acting as an expert witness, before the Commerce Corporation for a period of one (1) year following the severance of his employment with the Commerce Corporation. Finally, the Petitioner may not use any confidential information he obtained while working for the Commerce Corporation to obtain financial gain for himself or his new employer. Section 36-14-5(b), (c) & (d). 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 in meetings between his new employer and the Commerce Corporation regarding the supply chain development, project status, and/or his new employer’s compliance with the MOU. On the other hand, contacts involving purely personal or ministerial matters that do not involve discretion or decision-making on the part of the Commerce Corporation 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 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. Lastly, until the expiration of one (1) 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(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 (36-14-5016) Related Advisory Opinions: A.O. 2020-4 A.O. 2017-34 A.O. 2017-13 Keywords: Revolving Door