Advisory Opinion No. 2000-60

Re: Sherry Giarrusso-Mulhearn

QUESTION PRESENTED

The petitioner, the Executive Director of the Rhode Island Resource Recovery Corporation (RIRRC), a state employee position, who is terminating her position with the RIRRC, requests an advisory opinion as to whether she (1) may continue to represent the RIRRC as a legal consultant either through her new law firm or in her individual capacity and (2) may accept part-time employment with a company that contracts with RIRRC and that would not involve appearing before the RIRRC on the employer’s behalf.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Executive Director of the Rhode Island Resource Recovery Corporation (RIRRC), a state employee position, may serve as outside legal counsel for the RIRRC upon leaving her employment provided that she does not solicit the RIRRC for such an arrangement. Additionally, the petitioner may accept part-time employment with a company that has a contractual arrangement with the RIRRC provided that her employment is not a reward and is not given in return for the petitioner’s actions at the RIRRC, that she will not disclose confidential information learned while in state employment and that she will not appear before the RIRRC prior to the expiration of one-year from her official severance from her position with RIRRC.

The Code of Ethics provides that the petitioner may not represent herself or any other person before any state or municipal agency of which she is a member or by which she is employed. R.I. Gen. Laws § 36-14-5(e)(1), (2). Section 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner has officially severed her position with the agency. The Code of Ethics provides that a public official may not accept any reward or promise of future employment in return for or based on any understanding or expectation that his or her vote, official action or judgment would be influenced thereby. See R.I. Gen. Laws § 36-14-5(g).

The petitioner in this matter represents that she will terminate her employment with the RIRRC on July 14, 2000. She states that the RIRRC wishes to retain her professional services as a legal consultant after her employment relationship is severed. Those duties will not require her to “represent” herself or a client in matters before the RIRRC. The revolving door provision is inapplicable to such representation since it will be of the agency rather than before her former agency. In that regard, we conclude that the revolving door provision of Section 5(o) does not apply since the petitioner is neither on the staff of a state elected official nor is her potential representation of the RIRRC considered "employment" for purposes of the Code of Ethics. See Gemma v. R.I. Ethics Commission, No. 94-3404 (R.I. Sup. Ct. filed September 17,1994) (concluding that an attorney contractually retained by the State was not an employee, but an independent contractor and, accordingly, was not subject to the revolving door provisions set forth in R.I. Gen. Laws §36-14-5(o)).

However, the revolving door provision is applicable if the petitioner, rather than being requested by the RIRRC to represent it, solicits the RIRRC for employment or submits an application for such a contract. See e.g. A.O. 96-85 (concluding that a former School Committee member may not pursue employment with any search committee created by the School Committee before the expiration of one year from her resignation from the School Committee since applying for and interviewing with either the School Committee or its substitute constitutes representing herself before her own Board). Therefore, the Commission concludes that the Code of Ethics does not prohibit the petitioner from representing the RIRRC, her former employer, either in her individual capacity or as a member of her new law firm, provided that she did not apply for or solicit her “former” employer for such work.

The petitioner also advises that she may accept part-time employment with a company that has a contract for services with RIRRC. The petitioner states that all commercial customers are offered the same contract for disposal at a fixed rate for a two-year period. Additionally, she advises that she may make sales calls on Rhode Island businesses that do not have contractual relationships with RIRRC and that she will not represent her employer before the RIRRC. The Commission does not have any evidence to suggest that the petitioner was offered the position based on any actions she took as Executive Director. While the petitioner may accept such post-state service employment, she may not use confidential information obtained while working at the Department for private financial gain nor may she represent her private employer before her former agency until the expiration of a one-year period from the date of her severance from that position. See R.I. Gen. Laws 36-14-5(c), (e).

Code Citations:

36-14-5(e)
36-14-5(g)

Related Advisory Opinions:

99-53
98-49
97-141
96-85

Related Case Law:

Gemma v. R.I. Ethics Commission, No. 94-3404 (R.I. Sup. Ct. filed September 17, 1994)

Keywords:

Code Jurisdiction
Post-Employment