Advisory Opinion No. 2004-35

Re: David J. Cluley

QUESTION PRESENTED:

The petitioner, a Senior Civil Engineer for the Bridge Engineering Section, Rhode Island Department of Transportation, a state employee position, who is a former Sanitary Engineer for the Rhode Island Department of Environmental Management, Office of Water Resources, requests an advisory opinion regarding his ability to privately prepare and submit ISDS applications to his former Department and Office.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Senior Civil Engineer for the Bridge Engineering Section, Rhode Island Department of Transportation, a state employee position, who is a former Sanitary Engineer for the Rhode Island Department of Environmental Management, Office of Water Resources, may privately prepare and submit Individual Sewage Disposal System (ISDS) applications to his former Department and Office.

The petitioner states that from 1997 to November 2000, he was employed as a Sanitary Engineer by the Rhode Island Department of Environmental Management (RIDEM), Office of Water Resources in the Rhode Island Pollution Discharge Elimination System (RIPDES) Program. RIPDES is the state program responsible for permitting and monitoring point source discharges to surface waters such as sewage, stormwater, and industrial waste into state waters.

Since leaving RIDEM in 2000, the petitioner has been employed by the Rhode Island Department of Transportation (RIDOT) as a Senior Civil Engineer in the Bridge Engineering Section.

The petitioner states that he is a registered Professional Engineer. He wishes to take an examination to obtain an Individual Sewage Disposal System (ISDS) Class III Designer's license, and upon obtaining the license wishes to commence designing ISDS systems as a side business. The Class III Designer's license exam is administered by RIDEM's Office of Water Resources, for whom the petitioner was previously employed in the RIPDES Program. The ISDS Program is distinct from the RIPDES Program, but both are part of RIDEM's Office of Water Resources.

Given the petitioner's past employment at RIDEM in the Office of Water Resources, the petitioner asks whether the Code of Ethics prohibits his application to RIDEM for a Class III Designer's license and, if he passes the exam, of his submission to RIDEM of ISDS plans.

The Code of Ethics prohibits the petitioner from representing 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). This prohibition continues for one year following the petitioner's official severance from said state or municipal agency. R.I. Gen. Laws § 36-14-5(e)(4). The Code of Ethics also provides that the petitioner shall not accept other employment which will either impair his independence of judgment as to his official duties or induce him to disclose confidential information acquired by him in the course of and by reason of his official duties. R.I. Gen. Laws § 36-14-5(b).

Here, although the petitioner remains subject to the Code of Ethics by reason of his state employment with RIDOT, he officially severed his employment with RIDEM nearly four years ago. Accordingly, because more than one year has passed since the severance of the petitioner's employment with RIDEM, section 5(e) does not prohibit the petitioner from representing himself or others before that agency. The facts as represented do not indicate that the petitioner's side business as an ISDS designer will be in substantial conflict with the proper discharge of his current duties as a Senior Civil Engineer for RIDOT. Similarly, there is no indication that this side work will impair the petitioner's independence of judgement as to his RIDOT duties or induce him to disclose confidential information. For all of these reasons, the petitioner may take the Class III Designer's exam and, if he passes, prepare and submit private ISDS applications to RIDEM.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(e)

Keywords:

Revolving Door

Private employment