Advisory Opinion No. 2021-53

Rhode Island Ethics Commission

Advisory Opinion No. 2021-53

Approved: August 17, 2021

Re:  Stephen R. Ucci

QUESTION PRESENTED:

The Petitioner, a former legislator who served as a member of the Rhode Island House of Representatives, a state elected position, requests an advisory opinion regarding whether he may, prior to the expiration of one year after leaving legislative office, accept an appointment by the Speaker of the Rhode Island House of Representatives to the Special Commission on Reapportionment. 

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 House of Representatives, a state elected position, may, prior to the expiration of one year after leaving legislative office, accept an appointment by the Speaker of the Rhode Island House of Representatives to the Special Commission on Reapportionment, given that the members receive no compensation for their services. 

The Petitioner is a former member of the Rhode Island House of Representatives (“House of Representatives”), having served in that capacity for 16 years until January 5, 2021.  The Petitioner represents that he has been asked by the Speaker of the House of Representatives to serve as a member of the Special Commission on Reapportionment (“Reapportionment Commission”), which the Petitioner has agreed to do subject to approval by the Ethics Commission.  The Petitioner states that the Reapportionment Commission is a joint commission of the House of Representative and the Rhode Island Senate (“Senate”) which is formed every ten years following the completion of the state census.  He adds that the purpose of the Reapportionment Commission is to review the updated census data and offer to the General Assembly a proposed reapportionment (redistricting) plan for the 75 House and 38 Senate districts, as well as for the two United States Congressional seats.  The Petitioner further states that the Reapportionment Commission is comprised of 18 members, six of whom are members of the House of Representatives, six of whom are members of the Senate, six of whom are members of the general public, and none of whom receive financial compensation for their service on the Reapportionment Commission.  The Petitioner notes that he formerly served on the Reapportionment Commission as its chair in 2011.  Cognizant of the “revolving door” provisions of the Code of Ethics, and desirous of acting in conformance therewith, the Petitioner seeks guidance from the Ethics Commission regarding whether he may accept the appointment to the Reapportionment Commission prior to the expiration of one year after leaving public office.

The Code of Ethics contains both statutory and regulatory “revolving door” provisions that apply to a number of public officials, including current and former members of the legislature.  Pursuant to R.I. Gen. Laws § 36-14-5(n)(1) (“section 5(n)”):

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.

Section 36-14-2(8)(i) defines “state agency” as follows:

Any department, division, agency, commission, board, office, bureau, authority, or quasi-public authority within Rhode Island, either branch of the Rhode Island general assembly, or any agency or committee thereof, the judiciary, or any other agency that is in any branch of Rhode Island state government and which exercises governmental functions other than in an advisory nature[.] 

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 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”). 

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 state 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 the petitioner would have been paid a commission.  Similarly, 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.  Notably, however, the receipt of compensation for services rendered is a common element in the advisory opinions cited above and a necessary element in the application of the provisions of section 5(n) and Regulation 1.5.2. 

Here, as a joint committee of the General Assembly, the Reapportionment Commission falls squarely within the above definition of a state agency.  However, the Petitioner represents that the members of the Reapportionment Commission receive no compensation for their service.   Thus, service on the Reapportionment Commission does not constitute employment, which renders section 5(n) and Regulation 1.5.2 inapplicable here.  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 is not prohibited by the Code of Ethics from accepting appointment to the Reapportionment Commission prior to the expiration of one year after leaving legislative office.

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-00-00-1.5.2 Prohibition on State Employment (36-14-5007)

Related Advisory Opinions:
A.O. 2009-44
A.O. 2006-25

Keywords: 
Revolving Door