Advisory Opinion No. 2004-36

Re: Robert K. Griffith

QUESTION PRESENTED

The petitioner, a state employee sitting on the Rhode Island Water Resources Board as the designee of the Director of Administration, requests an advisory opinion regarding whether he may accept, if offered, employment in the position of General Manager of the Water Resources Board.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner is prohibited by the Code of Ethics from accepting employment with the Water Resources Board while he sits on the Board as the Director of Administration's designee, and for one year thereafter.

The petitioner advises that he has been a state employee for 16 years, and is currently employed in the State Budget Office as the Chief of Strategic Planning, Monitoring and Evaluation. Since 1995, part of the petitioner's official duties has been to sit on the Rhode Island Water Resources Board as the designee of the Director of Administration.

The petitioner represents that the Rhode Island Water Resources Board is an executive state agency responsible for managing the proper development, protection, conservation and use of the water resources of the state. The petitioner states that the Board's primary mission is to ensure that a sufficient water supply is available for present and future generations. Pursuant to R.I. Gen. Laws § 46-15.1-2, the board consists of 13 members made up of five members of the public appointed by the Governor, one member appointed by the Speaker of the House, one member appointed by the President of the Senate, one member selected by the Rhode Island Agricultural Council, and five ex officio members including the Director of Administration, the Director of Environmental Management, the Director of the Rhode Island Economic Development Corporation, the Director of the Department of Health and the Chairperson of the Joint Committee on Water Resources.

The Water Resources Board employs a full-time staff. The staff is supervised by a General Manager, who also supervises and integrates the work of over 150 volunteers and representatives of state agencies, cities and towns, local water suppliers and user groups. According to the petitioner, the Board's General Manager recently retired and a selection committee was established to fill the position. The petitioner has applied to fill the vacancy, and the selection committee requested that the petitioner seek an advisory opinion regarding his eligibility to accept the position if it is offered.

Ethics Commission Regulation 5006 is one of several sections(1) of the Code of Ethics that make up the Code's "revolving door" provisions. Entitled " Employment From own Board," it reads as follows:

No elected or appointed official may accept any appointment or election by the body of which he or she is or was a member, to any position which carries with it any financial benefit or remuneration, until the expiration of one (1) year after termination of his or her membership in or on such body, unless the Ethics Commission shall give its approval for such appointment or election, and, further provided, that such approval shall not be granted unless the Ethics Commission is satisfied that denial of such employment or position would create a substantial hardship for the body, board, or municipality.

Commission Regulation 5006. A clear example of the Commission's application of Regulation 5006 can be found in A.O. 99-60. There, the Commission opined that a member of Rhode Island Bridge and Turnpike Authority’s Board of Directors could not seek employment with the Turnpike Authority as its Executive Director until the expiration of a period of one year following his termination of membership on the Board.

The petitioner argues that Regulation 5006 is inapplicable to his situation since he is not an "elected or appointed official," but is simply a civil servant sitting on the Water Resources Board as the designee the Director of Administration. This interpretation is in keeping with the Commission's historical interpretation of the financial disclosure statutes as not requiring filing by state employee designees of appointed officials. For example, in A.O. 96-36, an Assistant Attorney General, a state employee, requested an advisory opinion as to whether he was required to file an annual Financial Statement as a state appointed official given that he attended meetings of the State Medical Examiners Commission as the representative of the Attorney General, who served on the Commission ex officio. The Commission's entire response consisted of two sentences:

The Code of Ethics does not require that the representatives or designees of elected or appointed officials, who attend meetings of or serve on boards or commissions in the place of those officials, file annual Financial Statements. Such representatives or designees are not elected or appointed officials within the meaning of R.I. Gen. Laws §§ 36-14-16, 36-14-4(a) and (b).

A.O. 96-36. Without adding to the analysis, the Commission relied on this brief opinion in two subsequent opinions: A.O. 98-87 (Principal Environmental Planner, a state employee, not required to file financial disclosure statement by reason of her sitting on Aquafund Advisory Council as designee of Director of Statewide Planning Program) and A.O. 99-106 (Department of Health employee serving as member of Mosquito Abatement Board as designee of Director of Department of Health not required to file financial disclosure statement).

The petitioner further states his understanding that the purpose of Regulation 5006 is "to prevent elected officials from seeding the civil service with their cronies." In fact, the exact purpose behind Regulation 5006 is not entirely clear. Enacted by the Ethics Commission in 1991 along with other provisions, the record of the Commission's rulemaking does not contain any specific discussion of its intent in enacting Regulation 5006. The Rhode Island Supreme Court reviewed Regulation 5006 along with the Code's other "revolving door" provisions in 1993, and made the following observations:

The legislative aim of the revolving-door provisions is to ensure that public officials adhere to the highest standards of conduct, avoid the appearance of impropriety, and do not use their positions for private gain or advantage. See R.I. Const., art. 3, sec. 7. The integrity of our government officials is quintessential to our system of representation. In general the purpose of revolving-door provisions is to prevent "government employees from unfairly profiting from or otherwise trading upon the contacts, associations and special knowledge that they acquired . . . ."

In re Advisory From the Governor, 633 A.2d 644, 671 (R.I. 1993)(quoting Forti v. New York State Ethics Commission, 75 N.Y.2d 596, 605, 554 N.E.2d 876, 878, 555 N.Y.S.2d 235, 237 (1990))(emphasis added).

We agree with the Court's view of the general purpose of Regulation 5006, preventing government employees and officials from unfairly profiting from or trading upon the contacts, associations and special knowledge that they acquired while performing their public duties as members of state and municipal boards. We also believe that the inequities sought to be avoided by Regulation 5006 exist regardless of whether the board member is a direct ex officio appointment, or whether he or she holds that position as the designee of someone else. This is especially true under facts such as those represented here, where the petitioner has sat as a member of the Water Resources Board for nearly a decade. These factors guide our interpretation of Regulation 5006 as applying to not only elected and appointed officials serving on boards, but also to long-standing members of such boards who serve as the designees of such elected and appointed officials.

Furthermore, the Commission does not find that the petitioner's current ineligibility pursuant to Regulation 5006 would create a substantial hardship for the Water Resources Board. In past opinions, the Commission has found hardship where a request for proposals or a position vacancy does not attract any applicants or when there is a lack of qualified individuals available to fill a particular position or apply for a particular contract. See A.O. 2000-32; A.O. 99-76. In this matter, the Commission does not dispute the petitioner's qualifications for the position of General Manager of the Water Resources Board. However, for a hardship to exist there must be some evidence that there is a dearth of other qualified individuals interested in the position.

For all of these reasons, it is the opinion of the Rhode Island Ethics Commission that the petitioner is prohibited by Regulation 5006 from accepting employment from the Water Resources Board as its General Manager.

Code Citations:

36-14-5006

Related Advisory Opinions:

2000-32

99-106

99-76

98-87

96-36

Keywords:

Revolving Door

Hardship exception

Private employment

(1) The other sections of the Code making up the "revolving door" provisions include: Regulation 5007 (prohibiting any member of the General Assembly from seeking or accepting state employment, not held at the time of the member's election, while serving in the legislature and for one year thereafter; § 36-14-5(n) (same, but applying to all state elected officials), § 36-14-5(o) (same, but applying to senior policy-making, discretionary or confidential staffers of state elected officials) and § 36-14-5(e) (prohibiting any person subject to the Code from representing himself or others before the state or municipal agency of which he or she is a member or by which he or she is employed).