Advisory Opinion No. 2000-19

Re: Neal J. Dupuis

QUESTION PRESENTED

The petitioner, the former Lincoln Tax Assessor, a municipal appointed position, requests an advisory opinion as to potential conflicts of interest given that his company, Certified Revaluation Company, Inc., was recently awarded the contract for conducting revaluations in Lincoln.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the former Lincoln Tax Assessor, a municipal appointed position, may enter into a contract with the Town of Lincoln to provide services for statistical revaluations of property provided that he does not “represent” himself before his former agency, the Tax Assessor’s Office, within one year of his having left that office.

The petitioner served as the Lincoln Tax Assessor from 1992 until October 1, 1999. He is now the primary owner of Certified Revaluation Company, Inc. (“CRC”), a company that provides statistical revaluation services. Three Rhode Island communities other than Lincoln are among the company's clients. The petitioner represents that the State of Rhode Island has initiated a program for each municipality to conduct statistical revaluations on a three-year cycle with the State paying for each municipality’s first scheduled statistical revaluation. The state Office of Municipal Affairs sets the standards for the minimum work to be performed, approves the request for proposals before they are issued, and approves the appropriation of funds for these projects. The Town of Lincoln recently prepared and published the request for proposals and the petitioner’s company was the low bidder on the project. The petitioner represents that he will perform the work and present it to the Tax Assessor. It is possible that the Tax Assessor would ask the petitioner for clarification, etc. and could inform the state inform the State that he was not satisfied with petitioner’s work under the contract, which could lead to nonpayment.

The Code of Ethics provides that the petitioner may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1), (2). R.I. Gen. Laws § 36-14-5(e)(3) provides that he cannot act as an expert witness before his agency with respect to any matter the agency’s disposition of which will or can reasonably be expected to directly result in an economic benefit or detriment to him or any business by which he is employed or represents. Further, Section 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner officially has severed his position with the agency. This “revolving door” language is provided so as to minimize any influence the former public official may have in a consideration by his former agency that is not available to the general public. Finally, R.I. Gen. Laws §§ 36-14-5(b), (c) and (d) prohibit the use and/or disclosure of confidential information acquired by an official or employee during the course of or by reason of his official employment, particularly for the purpose of obtaining financial gain.

The Commission consistently has concluded that under the very strict, but very clear, language of Section 5(e) public officials and employees may not appear before their own agency or board before the expiration of one year from their date of separation. See A.O. 96-11 (concluding that a former Senior Budget Analyst should not represent himself, any other person or entity, or act as an expert witness before the State Budget Office for a period of one year after having officially severed his position with that office); A.O. 99-125 (finding that a former Department of Health employee or his firm should not appear before his former Division in variance hearings for a period of one-year following the date of the petitioner’s official severance of employment with that agency.) A.O. 98-11 (advising former DEM employee that he should not participate in matters that include substantive action or action that involves discretion, for example, a discussion about the applicability of a regulation or its interpretation); A.O. 98-92 (advising former Providence Department of Public Works employee that he should not appear before that his former Department on behalf of his new employer on any matter, including the preexisting contract with the City of Providence, except for ministerial activities such as submitting or retrieving papers, submitting bills or invoices, or overseeing construction crews on behalf of his new employer, but may not, make substantive presentations or appearances before the Department of Public Works on behalf of his employer). Additionally, the Rhode Island Supreme Court in Diluglio v. Rhode Island Ethics Commission, 726 A.2d 1149 at 1152-1153 (R.I. 1999) found that a former legislator “appeared before his former agency” when he undertook lobbying activities with members of the State Senate given that he was employed as a lobbyist for purpose of defeating legislation, that he had initiated telephone conferences with state senators regarding the bill, attended senate sessions wearing his lobbyist badge, arranged dinners between state senators and his client, and prepared letters of information opposing the bill that were distributed to state senators, violated § 36-14-5(e).

Although the Commission has concluded that individuals subject to the Code may not appear before their own agency or board prior to the expiration of one year from their date of separation, that prohibition does not extend to the performance of ministerial acts. See A.O. 99-108 (concluding that former Cranston Director of Economic Development could participate in a program explaining the City’s Deferred Compensation Program with her new private employer since she could not sign up employees for the program and therefore does not fall within the revolving door restrictions set out in Section 5(e)); A.O. 97-46 (concluding DEM engineer working in Office of Waste Management could submit material for approval to the DEM’s Office of Water Resources and Office of Compliance and Inspection as a private engineer so long as it was ministerial in nature and given that the petitioner did not have contact with the Office of Water Resources and Office of Inspection and Compliance in his position in the Office of Waste Management, nor exercise any supervisory or policy-making authority within the DEM that would extend to and/or affect those offices); and A.O. 98-5 (DHS Casework Supervisor in the East Providence Long Term Care Unit could accept private employment that may involve contact with the DHS so long as contact with East Providence Long Term Care Unit is ministerial in nature for a period of one-year from the date of separation).

Finally, the Commission has specifically concluded that while a public official may bid on contract with his agency so long as it was subject to an open and public bid requirement and that he/she did not take part in the bid development process, that he/she could not appear before his agency for purposes of R.I. Gen. Laws 36-14-5(e). See A.O. 98-123 (advising Woonsocket City Councilor that he could submit bid for lease of space from the City, but that the Code prohibits his appearance before the Council regarding the lease or any matters arising thereunder except for ministerial tasks, such as submitting rental payments to the City, but in the event of a breach of the lease or other substantive dispute, he may not appear before the Council to represent his interests). See also A.O. 98-61, A.O. 98-90, and A.O. 93-79.

Based upon Section 5(e) of the Code and past advisory opinions, it is clear that the petitioner may not appear before the Lincoln Tax Assessor’s Office for a period of one-year following his official severance from his position. Since he is the primary owner of CRC, the revolving door prohibitions extend to the entire firm, including its officers and employees. The petitioner/firm may have substantive involvement in matters before Town of Lincoln departments other than the Tax Assessor’s Office provided that the petitioner did not exercise supervisory or policy-making authority within the particular department during his public employment with the town. However, he and the firm of which he is an owner may not have any personal involvement with a matter before the Tax Assessor’s Office that goes beyond ministerial activities (e.g. hand delivering documents to or reviewing files at the Office or providing information if requested by the Tax Assessor) so as to constitute “representing another person”, nor may he or the firm serve as an expert witness before that office until the expiration of one-year from the date of his official severance from employment with that agency. R.I. Gen. Laws § 36-14-5(e). Such substantive involvement and prohibited activity during the one-year period may include, for example, presenting arguments to the Tax Assessor if there is a dispute over the fulfillment of the revaluation contract. Additionally, the petitioner/firm may not use any confidential information he obtained while working for the Tax Assessor’s Office for financial gain. See R.I. Gen. Laws § 36-14-5(b), (c), and (d).

Code Citations:

36-14-5(a)
36-14-5(b)
36-14-5(c)
36-14-5(d)
36-14-5(e)

Related Case Law:

Diluglio v. Rhode Island Ethics Commission, 726 A.2d 1149 (R.I. 1999)

Related Advisory Opinions:

99-125
99-124
99-108
99-70
99-61
98-96
98-92
98-61
98-13
98-11
98-5
97-46
97-2
97-1
96-102
94-13

Keywords:

Business Interest
Contracts
Post employment
Revolving door