Advisory Opinion No. 2003-50

Re: Townsend H. Goddard

A. QUESTION PRESENTED

The petitioner, a Senior Policy Analyst in the Senate Policy Office of the Rhode Island General Assembly, a state employee position, requests an advisory opinion regarding his ability to accept employment as the Special Projects Communications Manager at the Rhode Island Economic Development Corporation.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a Senior Policy Analyst in the Senate Policy Office of the Rhode Island General Assembly, a state employee position, from accepting employment as the Special Projects Communications Manager at the Rhode Island Economic Development Corporation.

C. DISCUSSION

1. Facts

The petitioner currently is employed as a Senior Policy Analyst in the Rhode Island General Assembly’s Senate Policy Office. He advises that he wishes to accept employment with the Rhode Island Economic Development Corporation (EDC) as its Special Projects Communications Manager, a state employee position. He inquires as to whether he may accept such other state employment consistent with the one-year revolving door prohibition contained in R.I. Gen. Laws § 36-14-5(o)(1). He requests that the Commission determine his position as a Senior Policy Analyst does not constitute a senior policy-making, discretionary or confidential position for the purpose of section 5(o)(1)’s application.

In the alternative, the petitioner maintains that he has a minimum of five (5) years of uninterrupted state service, thus allowing him to accept a position at the EDC pursuant to R.I. Gen. Laws § 36-14-5(o)(2). Absent a finding of five years of successive state service by the Commission, the petitioner requests that the Commission authorize his acceptance of such state employment as an exception to the one-year revolving door prohibition under R.I. Gen. Laws § 36-14-5(o)(5).

The petitioner informs that as a Senior Policy Analyst he contributes to the research, design and implementation of public policy issues on behalf of the Senators who request research from the Senate Policy Office. He states that he provides the Senators with legislative summaries, press briefing materials and position paper and speech material preparation. He also functions from time to time as a liaison from the Senate Policy Office to public and private sector entities for the purpose of communication on policy issues.

While the petitioner serves as an employee of the Senate Policy Office, he asserts that he is not a senior policy-making officer. He indicates that the State Senators or staff members superior to him make all policy-making decisions. He represents that he serves as an analyst and researcher who provides factual information and statistical evidence and assembles public policy documentation and analysis for the Senators and Senate leadership’s staff and others, who ultimately make all policy decisions.

The petitioner advises that he works for the Director of the Senate Policy Office, Ken Payne. With regard to policy-making decisions, he states that he takes direction from his immediate supervisor, Mr. Payne, who directs his workload and flow. Mr. Payne responds to the Senators’ requests for analysis and takes direction from the Senate and Senate leadership regarding policy-making decisions. The petitioner informs that, unlike his supervisor, he does not attend the Senate’s senior staff meetings. Further, he is not a manager of staff, personnel or budgets.

As a Senior Policy Analyst, the petitioner discusses policy positions and potential legislation with the Senators and Senate leadership and its staff. He states that he is not in a position to make decisions regarding confidentiality or to disclose, divulge or interpret information differently than any other staff member of a government agency. He further represents that he is not bound by any privilege, security clearance or oath that would provide him with a heightened status of confidential information.

Further, the petitioner declares that he has provided more than five years of uninterrupted state service. From September 1996 to May 1998, he worked part-time as a paid graduate research assistant for the University of Rhode Island (URI) Department of Marine Affairs. He states that he worked for the URI Coastal Resources Center from January to December 1998 as a paid fellow, receiving state funds for said position. He began his current employ with the Senate Policy Office in January 1999, first as a paid fellow and then as a regular, full-time state employee. The petitioner maintains that that he has been in continuous state service as a full or part-time employee since September 1996 and, therefore, is qualified for an exemption to the one-year revolving door prohibition set forth in Section 36-14-5(o)(2).

Finally, in the alternative, the petitioner asks the Commission to grant an exception to the revolving door prohibition allowing him to accept employment with the EDC given his direct relevant government experience. He asserts that in his cumulative state service he has developed experience, skills and knowledge that would be valuable to the EDC. He further states that his potential employment as the EDC’s Special Projects Communications Manager would not create an appearance of impropriety.

2. Analysis

Under the Code of Ethics, no person holding, “a senior policy-making, discretionary, or confidential position on the staff of any state elected official or the general assembly,” shall seek or accept any other employment by any state agency while serving in such position and for a one-year period thereafter.

See R.I. Gen. Laws § 36-14-5(o)(1). Section 5(o)(2), however, provides as follows:

Notwithstanding the foregoing, a person holding a senior policy-making, discretionary, or confidential staff position who has a minimum of five (5) years of uninterrupted state service shall be exempt from the provisions of this section. “State service” as used herein means service in the classified, unclassified and nonclassified services of the state, but shall not include service in any state elective office.

R.I. Gen. Laws § 36-14-5(o)(2).

The petitioner, an employee of the Senate Policy Office, seeks to accept employment with the EDC, a “state agency” as defined in R.I. Gen. Laws § 36-14-2(8)(i); Commission Regulation 36-14-2002(4)(a). The relevant question for the Commission’s determination, in the first instance, is whether the position of a Senior Policy Analyst in the Senate Policy Office is a senior policy-making, discretionary, or confidential position on the staff of the general assembly. If the Commission makes such a finding, it next must consider whether the petitioner has sufficient uninterrupted state service to warrant an exemption from application of the revolving door provision.

Despite his title of “Senior Policy Analyst”, the petitioner’s duties and responsibilities do not bear the indicia of a senior policy-making, confidential or discretionary member of the general assembly’s staff. He maintains that he serves as an analyst and researcher who provides information to the Senate, Senate leadership and its staff at the direction of his supervisor, the Director of the Senate Policy Office. Notably, he states that he neither formulates policy nor attends the Senate’s senior staff meetings. Based upon his express representations regarding his lack of involvement in such matters, the Commission concludes that the petitioner is not a senior policy-making, discretionary or confidential member of the Senate’s staff. As such, section 5(o)(1) would not prohibit his acceptance of employment with the EDC as its Special Projects Communications Manager.

Finally, the Commission notes that the petitioner has been continuously employed in part-time or full-time state service since September 1996. Prior to his current employ, the state compensated the petitioner for his service as a fellow and research assistant at URI, a state agency as defined in R.I. Gen. Laws § 36-14-2(8)(i) and Commission Regulation 36-14-2001. Regardless of any determination as to his status as a senior policy-making, discretionary or confidential Senate staff member, the petitioner nonetheless would qualify for an exemption to the one-year bar on other state employment, pursuant to R.I. Gen. Laws § 36-14-5(o)(2).

The Commission concludes that the petitioner may accept employment with the EDC as its Special Projects Communications Manager without running afoul of the Code of Ethics’ revolving door provisions, specifically R.I. Gen. Laws § 36-14-5(o)(1). Given the foregoing, the Commission need not entertain the petitioner’s request for the grant of an exception to the one-year revolving door prohibition under section 5(o)(5).

Code Citations:

36-14-2(4)

36-14-2(8)(i)

36-14-5(o)(1)

36-14-5(o)(2)

36-14-5(o)(5)

Regulation 36-14-2001

Regulation 36-14-2002

Keywords:

Discretionary Authority Prospective Employment Revolving Door