Advisory Opinion No. 2021-31

Rhode Island Ethics Commission

Advisory Opinion No. 2021-31

Approved: April 27, 2021

Re: William J. Conley, Jr., Esq.  

QUESTION PRESENTED:

The Petitioner, a former legislator who served as a member of the Rhode Island Senate, a state elected position, requests an advisory opinion regarding whether he may, prior to the expiration of one year after leaving legislative office, provide legal services to the Rhode Island Senate Committee on Education in a purely voluntary capacity with no compensation. 

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former legislator who served as a member of the Rhode Island Senate, a state elected position, may, prior to the expiration of one year after leaving legislative office, provide legal services to the Rhode Island Senate Committee on Education in a purely voluntary capacity with no compensation.

The Petitioner served as a member of the Rhode Island Senate, representing District 18, until January 4, 2021.  In his private capacity, the Petitioner is a licensed attorney in the State of Rhode Island and a principal of The Law Office of William J. Conley, Jr.  He informs that his legal practice includes extensive experience in Rhode Island Education Law.  The Petitioner represents that he has been asked to provide legal services to the Rhode Island Senate Committee on Education (“Committee”).  The Petitioner states that said legal services would include: reviewing the bills assigned to the Committee for hearing; answering the Committee’s legal questions regarding Committee procedure and proposed legislation; potentially editing legislation under the Committee’s consideration; and possibly assisting the Committee Chair in preparing to discuss legal aspects of a bill on the Senate floor.  The Petitioner states that his work would be supervised by, and he would report, to the Senate President’s Chief Legal Counsel.  The Petitioner further states that, typically, the provision of these legal services is subject to a six-month contract for the period of January 1, 2021 to June 30, 2021, that is executed by the Executive Director of the Joint Committee on Legislative Services, the Operational and Management Committee for the General Assembly, and the legal counsel providing the services would normally be retained as an independent contractor.   However, he explains that because he will provide the legal services without compensation, there will be no need for him to sign a contract and he will neither be considered an employee of, nor an independent contractor for, the General Assembly.  Additionally, the Petitioner states that should he continue to provide legal services to the Committee beyond the anniversary of the end of his term as a Senator, he will continue to do so without accepting any compensation.

The Code of Ethics contains both statutory and regulatory “revolving door” provisions that are applicable to many public officials, including current and former members of the legislature, requiring a one-year “cooling off” period after leaving public office before seeking or accepting other paid positions in state government.  The statutory revolving door provision at issue in the instant request for an advisory opinion is R.I. Gen. Laws § 36-14-5(n)(1) (“section 5(n)”) which provides:

No state elected official, while holding state office and for a period of one (1) year after leaving state office, shall seek or accept employment with any other state agency, as defined in section 36-14-2(8)(i), other than employment which was held at the time of the official’s election . . . except as provided herein.

The General Assembly and any agency or committee thereof are expressly included within section 36-14-2(8)(i)’s definition of “state agency.”  Accordingly, absent application of an enumerated exception, the clear language of section 5(n) prohibits the Petitioner from seeking or accepting employment with the General Assembly. 

In addition to the statutory revolving door proscriptions set forth in section 5(n), which are applicable generally to all state elected officials, the Code of Ethics also contains a regulatory prohibition that applies only to members of the General Assembly and reads:

No member of the General Assembly shall seek or accept state employment, not held at the time of the member’s election, while serving in the General Assembly and for a period of one (1) year after leaving legislative office.  For purposes of this regulation, “employment” shall include service as defined in R.I. Gen Laws § 36-14-2(4) and shall also include service as an independent contractor or consultant to the state or any state agency, whether as an individual or a principal of an entity performing such service.

Commission Regulation 520-RICR-00-00-1.5.2 Prohibition on State Employment (36-14-5007) (“Regulation 1.5.2”).  Unlike its statutory counterpart, Regulation 1.5.2 does not authorize the Ethics Commission to grant any exceptions to its strict prohibition.  As such, Regulation 1.5.2 serves as an absolute bar to the Petitioner seeking or accepting potential employment as legal counsel to the Committee within one year after leaving legislative office. 

The Ethics Commission has on several occasions in the past reviewed and applied section 5(n) and Regulation 1.5.2 (formerly known as Regulation 36-14-5007) to legislators.  For example, in Advisory Opinion 2006-25, the Ethics Commission opined that Regulation 1.5.2 prohibited a member of the House of Representatives from providing insurance brokerage services as a consultant to a quasi-public state agency for which he would have been paid a commission.  Likewise, in Advisory Opinion 2009-44, the Ethics Commission opined that section 5(n) and Regulation 1.5.2 both prohibited a member of the Rhode Island Senate from providing paid arbitration or mediation services to a state agency, although he could continue to be listed on the Department of Administration’s master price agreement as qualified to provide such services to non-state entities.

A third revolving door provision of the Code of Ethics, Regulation 520-RICR-00-00-1.5.1 Employment from Own Board (36-14-5006) (“Regulation 1.5.1”), also restricts a public official’s ability to accept a paid position that requires the approval of the public body of which the public official was a member prior to expiration of the requisite one-year “cooling off” period.  Regulation 1.5.1 provides that “no elected or appointed official may accept any appointment or election that requires approval by the body of which he or she is or was a member, to any position which carries with it any financial benefit or remuneration, until the expiration of one (1) year after termination of his or her membership in or on such body.”  See, e.g., A.O. 2016-43 (opining that a North Smithfield Planning Board member was required to wait one year following his resignation to accept, if offered, appointment by the Town Administrator to the position of Town Planner where the selection process and final decision required the Board’s approval).  Contra A.O. 2003-65 (opining that a School Committee member could provide sports officiating services to the school department, given that he waived receipt of remuneration). 

Notably, however, the receipt of compensation for services rendered is a necessary element in the application of the provisions of the Code of Ethics cited above.  See A.O. 2013-11 (opining that an elected member of the Pascoag Fire District Board of Commissioners could not seek or accept a position as a volunteer firefighter in the same district while holding office as a Commissioner, and for one year after because volunteer firefighters were paid for their services as independent contractors); A.O. 2004-36 (opining that a state employee sitting on the Rhode Island Water Resources Board as the designee of the Director of Administration could not accept, if offered, employment in the position of General Manager of the Water Resources Board). 

Here, cognizant of the revolving door provisions of the Code of Ethics, the Petitioner states that he will forgo any compensation associated with the position of legal counsel to the Committee.  Under similar circumstances, the Ethics Commission has previously permitted public officials to accept employment or appointment to a position during their public service, or within one year after leaving public service, provided that the employment or appointment was to a volunteer position or where the public official agreed to waive the receipt of compensation and benefits and serve in a volunteer capacity.  See, e.g., A.O. 2018-7 (opining that the Chairman of the West Warwick School Committee was not prohibited from serving as a coach for the West Warwick High School girls’ basketball team, provided that he waived the receipt of any financial compensation and/or benefits and served in a volunteer capacity); A.O. 2016-46 (opining that a member of Pawtucket City Council could be appointed to the Pawtucket Water Supply Board, an unpaid position, within one year of the petitioner’s official severance from his position as City Councilor). 

In line with article III, section 7 of the Rhode Island Constitution, which requires public officials  to hold themselves to ethical standards that go beyond the legal requirements of the Code of Ethics by “adhering to the highest standards of ethical conduct, respecting the public trust and . . . avoiding the appearance of impropriety,” the provision of the legal services on a voluntary basis must not be temporary as a means to circumvent the revolving door provisions of the Code of Ethics in order to later secure a paid position at the expiration of the one-year “cooling off” period,.  See, e.g., A.O. 97-117 (concluding that a former Town Councilor could not circumvent the Code of Ethics by assuming a Senior Center Director (“Director”) position and serving as a volunteer only for the period of one year after her term in office ended and then accept financial and other benefits as compensation for her work as Director as soon as the one-year period ended). 

Accordingly, given the Petitioner’s representations, the applicable provisions of the Code of Ethics, and the review of prior advisory opinions issued, it is the opinion of the Ethics Commission that the Petitioner may provide legal services to the Committee, provided that he waives the receipt of any compensation for the performance of such services, even beyond the expiration of one year following his severance from legislative office on January 4, 2021. 

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(4)
§ 36-14-2(8)(i)
§ 36-14-5(n)
520-RICR-00-00-1.5.1 Employment from Own Board (36-14-5006)
520-RICR-00-00-1.5.2 Prohibition on State Employment (36-14-5007)

Constitutional Authority:
R.I. Const., art. III, sec. 7

Related Advisory Opinions:
A.O. 2018-7
A.O. 2016-46
A.O. 2016-43
A.O. 2013-11
A.O. 2009-44
A.O. 2006-25
A.O. 2004-36
A.O. 2003-65
A.O. 97-117

Keywords:
Prospective
Employment Revolving Door