Advisory Opinion No. 2001-42

Re: William L. Moore

QUESTION PRESENTED

The petitioner, the Little Compton Building Official/Highway Supervisor, a municipal appointed position, requests an advisory opinion as to whether, upon resignation from that position, he may 1) apply for and execute building permits as a registered contractor; 2) appear before the Zoning Board of Review; and 3) work as a subcontractor on projects for which he may have been involved in the permitting process.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner from applying for and executing building permits after resigning from his position as the Little Compton Building Official/Highway Supervisor, provided that he does not have any personal involvement with a matter before the Office of the Building Official that goes beyond ministerial activities for a period of one-year following his official severance of employment. See R.I. Gen. Laws § 36-14-5(e)(4). He may not use any confidential information obtained as the Building Official for financial gain. Finally, he may accept employment as a subcontractor on projects for which he may have been involved in the permitting process, provided that his employment is not a reward and is not given in return for his actions as the Building Official.

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. 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. 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. 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).

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 prohibit the petitioner from applying for and executing building permits after resigning from his position as the Building Official/Highway Supervisor. Pursuant to R.I. Gen. Laws § 36-14-5(e)(4), he may not have any personal involvement with a matter before the Office of the Building Official that goes beyond ministerial activities for a period of one-year following his official severance of employment with that agency. Ministerial tasks include actions that do not require his discretion, such as hand-delivering documents, reviewing files, or other non-substantive activities. Section 5(e)’s revolving door restrictions do not extend to the petitioner having substantive involvement in matters before other municipal departments or entities within the Town of Little Compton, such as the Zoning Board of Review. Although the petitioner may have advised the Zoning Board on certain matters in his capacity as the Building Official, his employment within the Office of the Building Official does not carry-over, with the accompanying restrictions, to other public bodies within the Town of Little Compton. In any instance, the petitioner may not use any confidential information obtained while working for the Office of the Building Official for financial gain. R.I. Gen. Laws §§ 36-14-5(a), (c), (d).

Finally, the petitioner may accept employment as a subcontractor on projects for which he may have been involved in the permitting process, provided that such employment is not given in return for actions he took in his capacity as the Building Official. Presently, the Code of Ethics does not prohibit former public officials and employees from working for private employers on contracts with their former agencies, even if they had involvement with the contract while a public official or employee. While Sections 5.2 and 5.3 of the Proposed Code of Ethics would prohibit this conduct in certain circumstances, they are not applicable here and likely would not affect this petitioner retroactively. See A.O. 98-92 (finding, inter alia, that a former Department of Public Works employee may oversee construction crews on behalf of his new employer, despite the fact that he previously had oversight and supervisory responsibilities for contracts to repair streets and sidewalks); A.O. 97-25 (concluding that the Chief of the Department of Transportation’s Communications Office may accept employment at firms with which he had contact while employed by the Department of Transportation).

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(c)

36-14-5(d)

36-14-5(e)

36-14-5(g)

36-14-7(a)

Related Advisory Opinions:

2001-33

2001-26

2000-66

2000-60

2000-19

99-140

99-125

99-108

99-61

99-53

98-154

98-96

98-92

98-11

97-25

97-3

96-106

96-59

95-6

Keywords:

Post-employment

Revolving door