Advisory Opinion No. 2002-37

Re: Mr. Kevin M. Bartlett

QUESTION PRESENTED

The petitioner, formerly employed by the Department of Environmental Management (DEM) as an engineer in the Total Maximum Daily Load (TMDL) Program, a state employee position, requests an advisory opinion as to whether he may submit applications to DEM’s ISDS or Freshwater Wetlands Programs within one year of severing his employment with DEM.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, formerly employed by the Department of Environmental Management (DEM) as an engineer in the Total Maximum Daily Load (TMDL) Program, a state employee position, may submit applications to DEM’s ISDS or Freshwater Wetlands Programs, personally or on his private employer’s behalf, within the one year period following his separation from DEM’s employ.

The petitioner advises that he left his position with the Department of Environmental Management (DEM) as an engineer in the Total Maximum Daily Load (TMDL) on February 21, 2002. He presently is working for a private engineering consulting firm. He represents that the TMDL Program is responsible for evaluating the state’s surface waters and designing restoration plans for impaired water bodies. TMDL personnel design watershed-wide surface water monitoring programs to determine the extent of the water quality impairment and to locate pollutant sources. The TMDL Program then works with local municipalities, other government agencies and volunteer organizations to design remediation strategies. Critically, he states that the objectives of the TMDL Program are substantially different than those of either the Individual Sewage Disposal System (ISDS) Program or the Freshwater Wetlands Program. The TMDL Program is not responsible for any ISDS or wetlands-related permitting and has little or no official contact with either of the other programs. The petitioner inquires as to his ability to submit applications to DEM’s ISDS or Freshwater Wetland Programs, individually or on behalf of his private employer.

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. See 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.

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 may 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 may 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 may 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).

In past opinions, the Commission has held that the provisions of subsection 5(e), whether for concurrent private sector employment or private sector employment upon leaving state service, may apply to either the entire agency by which an individual was employed or, more narrowly, to only the department within an agency that formerly employed the individual or with whom he/she had contact. Whether to view a division or department within an agency as a separate and distinct entity for purposes for applying section 5(e)'s restrictions depends upon factors such as, for instance, the overall size of the agency and the autonomy of divisions/departments within the agency. Treating divisions/departments as separate and distinct entities is the method of analysis that the Commission has applied to, for instance, the DEM, the Department of Transportation and the Department of Human Services.

The Commission concludes that the Code of Ethics does not prohibit the petitioner from submitting applications to DEM’s ISDS or Freshwater Wetlands Programs, either personally or on behalf of his private employer, after severing his employment as an engineer in DEM’s TDML Program. Pursuant to R.I. Gen. Laws § 36-14-5(e)(4), he may not have any personal involvement with a matter before the TDML Program that goes beyond ministerial activities for a period of one-year following his official severance of employment with DEM. 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 DEM divisions or departments with which he did not have involvement in his former employment. However, he is prohibited from any substantive involvement in matters before the TDML Program for a period of one-year following his severance from employment with DEM. This opinion comports with numerous prior advisory opinions in which the Commission limited application of the revolving door prohibition to the particular division within a large department like DEM. In any instance, the petitioner may not use any confidential information obtained while working for DEM for private financial gain. See R.I. Gen. Laws §§ 36-14-5(b), (c), (d).

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(c)

36-14-5(d)

36-14-5(e)

36-14-7(a)

Related Advisory Opinions:

2001-63

2001-52

2001-45

2001-44

2001-42

2001-33

2000-76

2000-66

99-140

99-125

99-70

99-61

98-154

98-108

98-96

98-11

98-5

97-46

97-2

97-1

96-11

Keywords:

Revolving Door

Post Employment