Advisory Opinion No. 2003-51 Re: Brandon B. Faneuf A. QUESTION PRESENTED The petitioner, a Rhode Island Department of Environmental Management (DEM) employee, a state employee position, requests an advisory opinion regarding his ability to represent third parties before DEM programs and divisions, other than those within which he currently is employed, during the one-year period following his severance of employment with the DEM. B. SUMMARY It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Rhode Island Department of Environmental Management (DEM) employee, a state employee position, may represent third parties before DEM programs and divisions, other than those within which he currently is employed, during the one-year period following his severance of employment with the DEM. This opinion is expressly based upon the Commission’s finding of a transitional hardship created by the petitioner’s good faith reliance upon Advisory Opinions Nos. 2003-8 and 2000-76. Further, the petitioner may not use any confidential information he obtained while working for the DEM for private financial gain. See R.I. Gen. Laws §§ 36-14-5(c), (d) and (e). C. DISCUSSION 1. Facts The petitioner advises that the Rhode Island Department of Environmental Management (DEM) has employed him for five years. He represents that from May 1998 until June 2000 he worked in the Freshwater Wetlands Program. He states that the Freshwater Wetlands Program has responsibility to carry out the provisions of the Rhode Island Freshwater Wetlands Act. The provisions of the Act include the conservation of the functions and values of wetlands and include, but are not limited to, wildlife habitat, recreation, flood control and aesthetics. The DEM currently employs the petitioner within its Total Maximum Daily Load (TMDL) and Shellfish Programs. He indicates that the TMDL Program is responsible for restoring depredated water bodies and watersheds within the state to levels compliant with relevant water quality standards. The Shellfish Program is responsible for the continual monitoring and subsequent classification of state waters for shellfish harvesting. The petitioner informs that he has never worked in the Individual Sewage Disposal System (ISDS) Program, which carries out the provisions of the “Rules and Regulations Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Individual Sewage Disposal Systems.” All four of the aforementioned programs are located within the DEM’s Office of Water Resources. The petitioner advises that the TMDL and Shellfish Programs are located within the Surface Water Protection Section of said Office, whereas the Freshwater Wetlands and ISDS Programs are located within the Groundwater and Wetlands Protection Section. He represents that the Freshwater Wetlands and ISDS Programs are very different in nature than the TDML and Shellfish Programs, despite the fact that they all are within the Office of Water Resources. In his current position, he states that he has little to no contact with the Freshwater Wetlands or ISDS Programs. The petitioner states that internal DEM policy prohibits his representation of third parties before any division of the DEM. As such, he is contemplating transferring to a different state agency or leaving state service to work for himself or a private employer. He requests guidance from the Commission as to whether he may represent third parties before the DEM as an employee of a different state agency, as a private entity or as an employee of a private company. The petitioner further advises that in the event that he were to work for himself and represent private clients in the field of wetland science, he would be required to sign all application forms for submission to the DEM and represent his client before the DEM. As an employee of a private company in such field, he states that he would not be required to have any contact with the DEM or the client. However, he represents that under current ISDS regulations he would be required to sign and provide his Class IV license number on applications and represent clients before DEM personnel at job sites, whether he is self-employed as a private entity or works as an employee of a private company. 2. Analysis Pursuant to R.I. Gen. Laws § 36-14-5(e)(1) and (2), 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. A “person” is defined as an individual or business entity. R.I. Gen. Laws § 36-14-2(7). R.I. Gen. Laws § 36-14-5(e)(3) further provides that the petitioner may not act as an expert witness before his agency with respect to any matter the agency’s disposition of which will or can reasonably be expected to directly result in an economic benefit or detriment to him, a family member, business associate or any business by which he is employed or represents. Subsection 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner officially has severed his position with the agency. The legislative intent of this “revolving door” language presumably is to minimize any potential, improper influence the former public employee may have with his former agency. Finally, R.I. Gen. Laws §§ 36-14-5(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. In prior advisory opinions, the Commission has held that the provisions of section 5(e), whether for concurrent private sector employment or private employment upon leaving state service, may apply to either the entire agency by which an individual was employed or, more narrowly, to only the specific department by which he or she was employed or with which he or she had contact. In determining the breadth of the prohibition, the Commission has considered a variety of factors, including the size of the agency, the nature of working relationships of separate departments within the agency and a particular individual's responsibilities within the agency. Treating divisions/departments of an agency as separate and distinct entities is the method of analysis that the Commission has applied to, for instance, the DEM, the Department of Transportation (DOT) and the Department of Human Services (DHS). E.g., A.O. 98-11 (former DEM employee was not barred or restricted from interacting with a DEM division with which he had no substantive involvement during his employment); A.O. 98-5 (DHS Casework Supervisor in East Providence Long Term Care Unit could accept private employment that may involve contact with 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); A.O. 97-46 (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); A.O. 97-2 (Principal Civil Engineer in Bridge Design Section of DOT could submit materials for approval of the Highway Maintenance Section and Road Design Section while employed there since the sections are separate and distinct entities within the department). Previously, the Commission considered whether this petitioner, as a DEM employee in the TMDL Program, could engage in private employment utilizing his Class IV Soil Evaluator license to conduct soil and site evaluations, prepare reports and test results and to submit these reports and results to the ISDS Program. A.O. 2003-8. There, the Commission opined that he could engage in such private employment, without violating relevant provisions of the Code of Ethics, given that the TMDL and ISDS Programs were separate and distinct within the DEM. However, it found that he could not have any personal involvement with a matter before the TMDL Program and could not use any confidential information he obtained while working for the TMDL Program, or for any division of the DEM, for financial gain to himself, his private employer or business associates. See R.I. Gen. Laws § 36-14-5(b), (c) and (d). Based upon a similar, narrow interpretation of the restrictions set forth in section 5(e), the Commission also advised the current petitioner that his employment in the DEM's TMDL Program was no bar to his accepting private employment involving the submission of permit applications and other materials to DEM's Freshwater Wetlands Program. A.O. 2000-76. By correspondence dated March 6, 2003, the DEM’s Executive Director, Jan H. Reitsma, formally requested that the Commission reconsider the issuance of advisory opinions allowing a state employee to represent others before his or her own agency. Mr. Reitsma observed that the Commission has issued numerous opinions permitting DEM employees who work within one division to engage in outside employment involving the submission of projects or applications to other divisions for review and/or approval. He also noted that such opinions directly contradict the DEM’s policy on outside employment and, ostensibly, R.I. Gen. Laws § 36-14-5. In January 2003, Mr. Reitsma issued a memorandum to all DEM employees relating to Conflicts of Interest/Outside Employment. The memorandum emphasized that, “…the Department does not allow its employees to represent other persons before the agency, regardless of how remote an employee’s position may be perceived to be from the matter before the agency (for example, in another division). (Emphasis original). The memorandum specifically sets forth that DEM employees are subject to said policy and restriction, notwithstanding any contrary opinions from the Ethics Commission. Historically, the Commission has proffered no opinion as to whether conduct that satisfies the requirements of the Code of Ethics would run afoul of other authorities. The Commission is authorized to issue advisory opinions solely relating to the applicability of the statutory and regulatory provisions of the Code of Ethics. R.I. Gen. Laws § 36-14-11. Advisory opinions expressly state that the Commission does not exercise jurisdiction over other statutes, rules or policies and, therefore, is not empowered to issue opinions addressing or interpreting their effect. As such, whether a public employee has violated an agency’s policy or rule properly rests within the determination of the affected agency. Here, however, the Commission has re-examined the analysis undertaken in prior advisory opinions that treated different divisions of a large agency, including the DEM, as separate and distinct entities. Nowhere in section 5(e) does the clear statutory language allow for such disparate treatment. Rather, subsection 5(e)(2)’s unambiguous language expressly prohibits any person subject to the Code of Ethics from representing any other person before a state or municipal agency of which he or she is a member or by which he or she is employed.(1) Further, no Commission Regulation provides for such unique treatment of large agencies in applying the revolving door prohibitions of the Code of Ethics. Although the Commission previously chose to treat the various divisions and sections of the DEM, DOT and DHS as separate public bodies in its application of section 5(e), there exists no statutory or regulatory authority to support that interpretation. As such, the Commission no longer can endorse application of the revolving door prohibitions to only those departments/divisions of a large agency by which an individual is employed. Notwithstanding its prior advisory opinions interpreting section 5(e) more narrowly, the Commission hereby affirms that no person subject to the Code of Ethics shall represent him or herself or any other person before any state or municipal agency of which he or she is a member or by which he or she is employed. This prohibition is absolute and applies to the entire agency, including all of its offices, sections, programs or divisions. Consistent with subsection 5(e)(4), the prohibition endures for one year after the individual has severed his or her position with the agency. Nevertheless, the Commission is cognizant of the impact of its prior opinions to the petitioner concluding that section 5(e) would not prohibit his concurrent private representation of third parties before those DEM divisions by which he is not employed. Given the analysis set forth in those opinions relating to subsection 5(e)(4), the Commission finds that the petitioner could reasonably conclude that no similar restrictions would be placed upon his post-DEM private employment. Accordingly, the Commission concludes that the petitioner may represent third parties before DEM programs and divisions, other than those within which he currently is employed, during the one-year period following his severance of employment with the DEM. He may participate in the presentation of evidence or argument before said programs and divisions for the purpose of influencing the DEM’s judgment in favor of an individual or business entity, whether in his individual capacity as a private entity or as an employee of a private company. See R.I. Gen. Laws § 36-14-2(13). This opinion is expressly based upon a finding of a transitional hardship created by the petitioner’s good faith reliance upon Advisory Opinions Nos. 2003-8 and 2000-76. The petitioner also inquires as to any potential conflict of interest that would arise were he to have post-employment contact with the DEM as an employee of another state agency. As an employee of another state agency, the petitioner may have substantive involvement before the DEM in fulfilling his official state duties and responsibilities. Under the Code of Ethics, a state agency is not an individual or business entity. See R.I. Gen. Laws § 36-14-2(7). Therefore, the petitioner would not violate the provisions of section 5(e) were he to represent a state agency before the DEM in the discharge of his official state duties during the one year period following his severance of DEM employ. Despite the restrictions outlined above, the petitioner may engage in ministerial activities before the DEM, including any office, section, program or division thereof, during the one year following his termination of employment. Ministerial activities include actions which do not require the petitioner’s discretion, such as hand-delivering documents, reviewing files at the DEM, signing relevant applications or inquiring as to the status of an investigation. Finally, R.I. Gen. Laws §§ 36-14-5(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 petitioner must be careful not to use confidential information gained through his employment at the DEM to his advantage in submitting materials to the DEM on behalf of private clients. Code Citations: 36-14-2(7) 36-14-2(13) 36-14-5(b) 36-14-5(c) 36-14-5(d) 36-14-5(e) Related Advisory Opinions: 2003-8 2001-52 2001-45 2001-44 2001-33 2001-11 2000-76 99-140 99-125 99-108 99-70 99-61 98-11 98-5 97-46 97-2 97-1 96-11 Keywords: Post-employment Revolving Door (1) Whereas subsection 5(e)(2)’s prohibition against the representation of any other person is absolute, 5(e)(1) does permit the representation of one’s self upon the Commission’s express grant of a hardship exception.