Advisory Opinion No. 2001-44

Re: Kevin M. Major

QUESTION PRESENTED

The petitioner, a former employee of the Department of Corrections (DOC), a state employee position, requests an advisory opinion as to whether a company that he has formed with a former employee Department of Administration’s Office of Library and Information Services (OLIS) may perform computer consultant work for various state agencies.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit a company formed by the petitioner, a former Department of Corrections (DOC) employee, and a former employee of the Department of Administration’s Office of Library and Information Services (OLIS), state employee positions, from performing computer consultant work for state agencies, provided their individual involvement in matters concerning the DOC or the OLIS must be of a ministerial nature for a period of one-year following their dates of separation from those respective agencies. See R.I. Gen. Laws § 36-14-5(e). Further, he and his partner may not use any confidential information they obtained while working for either the DOC and/or the OLIS for financial gain. See R.I. Gen. Laws § 36-14-5(b), (c), (d).

The petitioner is a former employee of the Department of Corrections (DOC). He advises that he and a former employee of the Department of Administration’s Office of Library and Information Services (OLIS) previously formed a company that has provided computer consultant work for private entities. He indicates that they now wish to perform such work for various state agencies. He represents that while at the DOC he did not have major responsibility regarding the hiring of consultants, the creation or review of RFP’s, or the purchase of computer equipment or system, although DOC management may have asked for his opinion on such matters. In the course of his partner’s public employment, he dealt with several state agencies and supported and managed other OLIS staff.

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 or employee 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.

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. 98-92 (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); 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); and 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 per se prohibit the petitioner’s company from providing computer consultant services to state agencies. 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 DOC that goes beyond ministerial activities (e.g., hand delivering documents to or reviewing files) for a period of one-year following his official retirement from that agency. Similarly, his partner may not have any personal involvement in substantive matters concerning the OLIS during the one-year period following his severance of employment with that division of the Department of Administration. Section 5(e)’s revolving door restrictions do not extend to his partner having substantive involvement in matters before other divisions of the Department of Administration or state agencies, provided that in his previous employment with the OLIS he did not exercise supervisory or policy-making authority for the particular division or agency.

The strict prohibitions of 5(e) adhere regardless of whether the petitioner and/or his partner contract with state agencies individually, as contract employees, or in their capacities as employees of a company. The Commission further concludes that the petitioner and/or his company may perform subcontracting work on behalf of another firm that has contracted with a state agency, without application of the prohibitions of 5(e) set forth above. The revolving door and post-employment restrictions may apply with respect to other state agencies over which the petitioner’s partner may have exercised supervisory authority during his employment with the OLIS. The petitioner is encouraged to seek further guidance from this Commission if and when his firm has occasion to have substantive dealings with any agency for which computer system his partner exercised supervisory authority. Finally, the petitioner and his partner may not use any confidential information they obtained while working for either the DOC and/or the OLIS for financial gain. See 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)

36-14-7(a)

Related Advisory Opinions:

2001-33

2001-26

2001-16

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-state employment

Revolving door