Advisory Opinion No. 2000-66

Re: Brian K. Keeler

QUESTION PRESENTED

The petitioner, the Chief of Employee Benefits for the State of Rhode Island, a state employee position, requests an advisory opinion as to what restrictions may apply to his private employment with Aetna Financial Service Co., one of three current state vendors for the Section 457 Deferred Compensation Plan, following his retirement from state service.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Chief of Employee Benefits for the State of Rhode Island, a state employee position, may accept private employment with Aetna Financial Service Co., one of three current state vendors for the Section 457 Deferred Compensation Plan, following his retirement from state service provided that he adheres to the prohibitions of Section 5(e) of the Code of Ethics during the one year following official severance from his position with the State. This provision prohibits the petitioner from appearing or representing himself or another person before his former agency for a one-year period. This would include the Employee Benefits Unit and any other unit/personnel within the Department of Administration over which he exercised supervisory or policymaking control while in state service. After beginning work with Aetna the petitioner may, however, perform ministerial activities involving the Department of Administration. Ministerial tasks include actions that do not require discretion such as hand-delivering documents, reviewing files, or other non-substantive activities. Section 5(e)'s revolving door restrictions also do not extend to the petitioner having substantive involvement in matters before other state departments, meeting with individual state employees in their personal capacities, or working on internal matters for his new private employer. In any instance, the petitioner may not use any confidential information obtained while working for the State for financial gain. R.I. Gen. Laws §§ 36-14-5(a), (c), (d).

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). Section 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner has officially severed his 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 advises that he is the Chief of Employee Benefits for the State of Rhode Island and that he is planning to retire in September of this year. He has received an offer of employment from Aetna Financial Service Co., one of three current state vendors for the Section 457 Deferred Compensation Plan. His duties with the State have consisted of the following:

(1) the development and administration of the State’s Deferred Compensation Plan and related plan documents; review and approval of all plan distributions;

(2) liaison with the Office of the General Treasurer;

(3) liaison with plan marketing and administrative staff in matters relating to communications, marketing, transfers to other available plans, distribution, payroll matters and general plan management; and

(4) providing information to employees, agencies and financial planners representing the participants.

The petitioner’s proposed duties at Aetna include the following:

(1) section 457 Deferred Compensation Plan marketing and service to individual state employees, after an initial training period of approximately three months, drawing upon Aetna’s proprietary information rather than records or information which he was exposed to while serving as Chief of Employee Benefits:

(2) attending information pre-bid conferences. Meet, when necessary, with state officials regarding plan administration and investment operations.

(3) reviewing and preparing RFP responses when bid by the state (currently set for 2002).

(4) coordinating Aetna internal operations regarding the State of Rhode Island account.

The Commission has previously issued advisory opinions advising a former employee of a large department that he/she may not appear before those units/personnel over which he/she had supervisory or policymaking authority. In Advisory Opinion 99-108, the Commission concluded that a former Cranston Department Director may provide seminars to city employees explaining a deferred compensation program on behalf of her new employer, but may not appear before her former department or other divisions or agencies where she exercised supervisory or policy-making authority. See also A.O. 98-11 (former Department of Environmental Management (DEM) employee was not barred or restricted from interacting with a DEM division with which he had no substantive involvement during his employment, but that he was limited to performing ministerial activities in any matter which would involve the division by which he was formerly employed); 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). Cf. A.O. 98-96 (Former employee of NBC may not appear before the Commission on behalf of his new employer on any matter, including the contract to design improvements and develop a comprehensive utility plan, except for ministerial activities such as submitting or retrieving papers until one year from his official date of severance from public employment).

The petitioner’s proposed duties at Aetna as set out above are governed, in part, by Section 5(e)(4) of the Code of Ethics. This provision bars him from appearing before and meeting with state officials or employees within the Department of Administration. This specifically includes the Employee Benefits Unit and any other unit/personnel over which he had supervisory or policymaking authority as Chief of Employee Benefits. By virtue of the petitioner’s responsibilities as a state employee, the petitioner had supervision or policymaking authority over various state officials and employees relative to deferred compensation plan administration. He would now be precluded from working with those state officials within the Department of Administration on behalf of Aetna for the one-year period.

However, the Code of Ethics does not prohibit the petitioner from performing his other planned duties. For instance, he may privately consult with state employees on their individual deferred compensation plans. The purposes of Section 5(e) are not thwarted by such meetings since he will be appearing before individual state employees in their private capacity and without the ability to influence a governmental decision. Additionally, he may attend informational pre-bid conferences and meet with state officials at other state agencies including the General Treasurer’s Office. Similarly, nothing in the Code of Ethics prohibits the petitioner from performing “behind the scenes” work such as coordinating Aetna’s internal operations regarding the State of Rhode Island account. We note that a post-employment concern is not raised by either the petitioner’s salary arrangement nor his participation in bidding on state contracts particularly since that will occur more than one year after his official severance of employment with the state. Finally, the Commission does not have any evidence to suggest that the petitioner was offered the position based on any actions he took as Chief of Employee Benefits. While the petitioner may accept such post-state service employment, he may not use confidential information obtained while working with the State for private financial gain. See R.I. Gen. Laws § 36-14-5(c), (d).

Code Citations:

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

Related Advisory Opinions:

99-108
99-70
99-61
98-96
98-13
98-11
98-5
97-46
97-2
97-1
96-102
96-11

Keywords:

Post-Employment
Private Employment
Revolving Door