Advisory Opinion No. 2020-7 Rhode Island Ethics Commission Advisory Opinion No. 2020-7 Approved: January 28, 2020 Re: Ferdinand C. Ihenacho, P.E. QUESTION PRESENTED: The Petitioner, Chief Civil Engineer, Transportation Planning, Rhode Island Department of Transportation (RIDOT), a state employee position, requests an advisory opinion regarding whether plans that he prepares in his private capacity may be submitted to RIDOT’s Highway and Bridge Maintenance Division for its review and approval of a permit application to be filed by a private client. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the Petitioner, Chief Civil Engineer, Transportation Planning, Rhode Island Department of Transportation (RIDOT), a state employee position, from preparing plans to be submitted by a private client to RIDOT, including any separate divisions thereof or entities therein, while he is employed by RIDOT and for a period of one (1) year thereafter. The Petitioner is employed by the Rhode Island Department of Transportation (RIDOT) as Chief Civil Engineer in the Transportation Planning Division. He informs that RIDOT is responsible for the planning, design, construction, and maintenance of all state-owned roadways. The Petitioner advises that RIDOT’s Planning Division establishes the sequence and funding (“Plan”) for the State’s transportation system. Based upon this written Plan, RIDOT’s Design/Construction Division designs and builds the transportation system and its Highway and Bridge Maintenance Division maintains the transportation infrastructure. The Petitioner represents that all three divisions function independently as distinct entities within RIDOT. The Petitioner advises that RIDOT’s Highway and Bridge Maintenance Division issues permits for the development of property abutting state-owned roadways. A team of engineers assigned to the Highway and Bridge Maintenance Division Permit Section (“Permit Section”) reviews and analyzes permit applications, which include the submission of project plans, to ensure that there is conformance to state standards with regard to the type and quality of materials to be utilized, as well as workmanship standards. The Permit Section may approve or deny such applications or make comments for revision and resubmission. While the Petitioner had been assigned to the Permit Section several years ago, he has been in his current Transportation Planning assignment for approximately two (2) years. He represents that he has no involvement with the Permit Section’s decision-making, and he further notes that the Highway and Bridge Maintenance Division is located in a separate facility in Warwick. In his private capacity, the Petitioner states that he has previously prepared design plans for clients on his own time and without the use of public resources. He represents that such projects did not abut state-owned roadways and, therefore, did not require the issuance of permits by RIDOT. The Petitioner now seeks guidance as to whether he may, consistent with the Code of Ethics, prepare plans for projects that would require RIDOT-issued permits, such as for the construction of a commercial driveway abutting a state-owned roadway. He informs that the individual property owner would submit the requisite application to the Permit Section, along with the plans prepared by and bearing the signature of the Petitioner as the consulting engineer. 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). The “revolving door” language of section 5(e) is designed to minimize any undue influence that an employee may have over his agency and colleagues by reason of his employment there. Section 36-14-5(e)(4) extends this prohibition for a period of one (1) year after the public employee has officially severed his position with the agency. 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). In Advisory Opinion 2003-51, the Ethics Commission considered whether a Department of Environmental Management (DEM) employee could represent third parties before DEM programs and divisions other than those by which he was employed. There, the Commission expressly affirmed that, pursuant to section 5(e), no person subject to the Code of Ethics shall represent him or herself or any other person before any state or municipal agency of which he or she is a member or by which he or she is employed. Said prohibition is absolute and applies to the entire agency, including all of its offices, sections, programs or divisions. Consistent with subsection 5(e)(4), the prohibition endures for one (1) year after the individual has severed his or her position with the agency. See A.O. 2003-51.[1] Subsequently, 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 state employment. See, e.g., A.O. 2017-34 (opining that a former Principal Civil Engineer in RIDOT’s Bridge Design Section, while not prohibited from working for a private engineering firm upon his retirement, was prohibited from representing himself or others, including his new private employer, or acting as an expert witness, before RIDOT 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 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 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 one-year period following his state employment and from using any confidential information he obtained while working for the State Fire Marshal for financial gain); A.O. 2012-12 (opining that a former senior environmental scientist at DEM was not prohibited by the Code of Ethics from working for the Rhode Island Natural Resources Conservation Service upon his retirement, provided that he does not have any personal involvement with a matter before his former agency for a period of one (1) year following his official date of severance, and he does not disclose confidential information he may have obtained during the course of his state employment). Here, RIDOT exercises decision-making authority over a permitting process that would require substantive review of design plans prepared and signed by the Petitioner as the consulting engineer. The Ethics Commission finds that the submission of such plans to RIDOT would constitute the Petitioner’s representation of a client before his own agency and, thus, run afoul of section 5(e)’s prohibitions. Compare A.O. 2005-15 (opining that a Principal Civil Engineer employed by DEM may accept part-time employment with a private firm that submits work to DEM based upon express representations that none of the plans submitted to DEM by the firm would bear the petitioner’s name or professional engineer’s stamp and that he would not have any direct contact with DEM). 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(e) 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) Related Advisory Opinions: 2018-12 2017-34 2017-13 2012-12 2008-62 2005-15 2003-51 97-46 97-2 Keywords: Revolving Door Private Employment