Advisory Opinion No. 2001-33

Re: Karen A. Leach

QUESTION PRESENTED

The petitioner, a Senior Probation and Parole Counselor with the Department of Children, Youth and Families (DCYF), a state employee position, requests an advisory opinion as to whether following her retirement from state service she may seek employment with Network Six, Inc., a DCYF vendor, given that she would be assigned to her former division within the DCYF.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the petitioner, a Senior Probation and Parole Counselor with the Department of Children, Youth and Families (DCYF), a state employee position, from accepting post-state service employment within her former DCYF division during the one year following official severance from her position with the DCYF. See R.I. Gen. Laws § 36-14-5(e).

The petitioner advises that she has worked in the Department of Children, Youth and Families’ (DCYF) Management Information Systems Unit as a business analyst for the past five years and four months. The Management Information Systems Unit maintains the operation of the Rhode Island Children’s Information System (RICHIST). Her duties include system design and data quality assurance. She indicates that she does not exercise supervisory responsibilities, nor does she have any contractual association with outside vendors or contractors. The petitioner will be retiring in May 2001 and wishes to seek employment with Network Six, Inc., the DCYF maintenance contractor for RICHIST. She represents that its contract with the DCYF runs from February 2000 through February 2003. She indicates that Network Six would place her at the DCYF because of her knowledge of the RICHIST. She further advises that her job would entail doing system design and testing for RICHIST, but she would not have any supervisory responsibilities or involvement with development of DCYF policy.

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. 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. Further, 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. Finally, a public official or employee 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 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).

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). 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 Commission concludes that the Code of Ethics does not per se prohibit the petitioner from accepting post-state service employment with Network Six, Inc., a DCYF contractor. However, pursuant to R.I. Gen. Laws § 36-14-5(e)(4), the petitioner may not have any personal involvement with a matter before the Management Information Systems Unit of the DCYF that goes beyond ministerial activities (e.g., hand delivering documents to or reviewing files at the division) for a period of one-year following her official severance of employment with that division. Section 5(e)’s revolving door restrictions do not extend to the petitioner having substantive involvement in matters before DCYF divisions, agencies or departments other than the Management Information Systems Unit, provided that in her previous employment with the DCYF she did not exercise supervisory or policy-making authority within the particular division or agency. Finally, the petitioner may not use any confidential information she obtained while working for the DCYF for financial gain. R.I. Gen. Laws § 36-14-5(b), (c), (d).

Code Citations:

36-14-5(a)

36-14-5(b)

36-145(c)

36-14-5(d)

36-14-5(e)

36-14-5(g)

36-14-7(a)

Related Advisory Opinions:

2001-26

2000-66

2000-60

2000-19

99-140

99-125

99-108

99-61

99-53

98-154

98-96

98-92

98-13

98-11

96-59

95-6

Keywords:

Post employment

Revolving door