Advisory Opinion No. 2005-54 Re: Lynda D. Kahn QUESTION PRESENTED: The petitioner, the former Executive Director for the Division of Developmental Disabilities at the Department of Mental Health, Retardation and Hospitals, a state employee position, requests an advisory opinion as to whether she may contract with private provider agencies with whom she had worked while in her public employment. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, the former Executive Director for the Division of Developmental Disabilities (“the Division”) at the Department of Mental Health, Retardation and Hospitals (“MHRH”), a state employee position, from contracting with private provider agencies with whom she previously worked while in her public employment provided that: 1) she does not have any personal involvement with a matter before her former agency that goes beyond ministerial activities for a period of one-year following her official severance of employment; and 2) she does not disclose confidential information obtained during the course of her state employment. The petitioner informs that in September of 2004, she went on extended medical leave from MHRH until January of 2005. The petitioner advises that upon her return to work in January of 2005, she was removed from all authority over the Division’s budget or policy decisions with contractors of MHRH who provided services to adults with developmental disabilities, or over the day-to-day operations of the Division’s staff. Thereafter, the petitioner advises that she was granted an unpaid leave of absence from MHRH from March of 2005 until her resignation on September 1, 2005. The petitioner represents that she would like to resume paid employment which may include providing contractual services with private developmental disability agencies with whom she had worked during her public employment. In a subsequent telephone conversation, the petitioner advised that as Executive Director she was responsible for systems redesign, policy development, presiding over informal hearings and meeting with the private provider agencies three to four times per year to discuss expectations and policies of the Division. The petitioner expressly represented that she will not represent herself or any of the private provider agencies with whom she may contract before MHRH or the Division. The Code of Ethics provides that the petitioner may not represent herself or any other person before any state or municipal agency of which she is a member or by which she is employed. 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 her position with the agency. This “revolving door” language is provided so as to minimize any influence the former public official may have in a matter before her former agency. 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, her official employment, particularly for the purpose of obtaining financial gain. Finally, a public official or employee may not accept any reward or promise of future employment in return for, or based on, any understanding or expectation that his or her vote, official action or judgment would be influenced thereby. See R.I. Gen. Laws § 36-14-5(g). 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 should not appear before his former Division in variance hearings for a period of one-year following the date of his official severance of employment with that agency); A.O. 98-92 (advising former Providence Department of Public Works employee that he should not appear before his former Department on behalf of his new employer on any matter, including the pre-existing contract with the City of Providence, except for ministerial activities such as submitting or retrieving papers, submitting bills or invoices, or overseeing construction crews on behalf of his new employer, but may not make substantive presentations or appearances before the Department of Public Works on behalf of his employer); A.O. 98-11 (advising former DEM employee that he should 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); and A.O. 96-11 (concluding that a former Senior Budget Analyst should 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)); 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). The Commission concludes that the Code of Ethics does not per se prohibit the petitioner from contracting with private provider agencies with whom she worked in her public employment. However, pursuant to R.I. Gen. Laws § 36-14-5(e)(4), the petitioner may not have any personal involvement with a matter before the Division that goes beyond ministerial activities (e.g., hand delivering documents to or reviewing files at the agency) for a period of one-year following her official severance of employment with that agency. See A.O. 2001-33 (opining that a DCYF employee could seek employment with a DCYF vendor upon retiring from state service, provided that she did not have personal involvement with matters within her former DCYF division for a one-year period). Section 5(e)’s revolving door restrictions do not extend to the petitioner having substantive involvement in matters with private provider agencies before other state agencies or departments outside of MHRH, provided that in her previous employment with MHRH she did not exercise supervisory or policy-making authority within the particular division or agency. Finally, the petitioner may not use any confidential information she obtained while working for MHRH for financial gain. 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) 36-14-5(g) 36-14-7(a) Related Advisory Opinions: 2001-63 2001-52 2001-33 2001-26 2000-66 2000-60 2000-19 99-140 99-125 99-108 99-61 99-53 98-154 98-96 98-92 98-13 98-11 96-59 95-6 Keywords: Post employment Revolving door