Advisory Opinion No. 2006-13

Advisory Opinion No. 2006-13

Re: Jean Marie Rocha, MPH, RN


The petitioner, the former Director of Nurse Registration and Nursing Education for the Office of Health Professionals Regulation at the Department of Health, a state employee position, and the current Vice President of Clinical Affairs for the Hospital Association of Rhode Island, a private trade association, requests an advisory opinion as to what extent she may interact with the Department of Health on various matters related to clinical affairs issues.


It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, the former Director of Nurse Registration and Nursing Education for the Office of Health Professionals at the Department of Health (“DOH”), a state employee position, and the current Vice President of Clinical Affairs for the Hospital Association of Rhode Island (“HARI”), a private trade association, from interacting with the DOH on matters involving clinical affairs issues provided that:  1) she does not represent herself or HARI before the DOH for the purpose of influencing any judgment that the DOH may render involving said clinical issues; and 2) she does not disclose confidential information obtained during the course of her state employment.

The petitioner informs that she was employed by the DOH until January of 2006 as Director of Nurse Registration and Nursing Education within the Office of Health Professionals Regulation.  She advises that in her capacity as Director, she supervised the administrative functions of licensing and the discipline of nurses as well as provided consultative services to the schools of nursing.  The petitioner represents that prior to this position and until August of 2004, she served within the DOH as the Project Manager for the Health Quality Performance Measurement and Reporting Program (“the Reporting Program”) which requires hospitals and all licensed health care facilities to publicly report on clinical and patient satisfaction measures.  The petitioner represents that in her capacity as Project Manager, she coordinated all functions for the release of public reports and coordinated research activities for data collection, data utilization and other technical components that were required to measure facility performance.  The petitioner further represents that while she did regularly interact with upper management of hospitals in the state, she had no supervisory, policymaking or fiscal authority over them.

The petitioner advises that on January 23, 2006, she was hired by HARI as Vice President of Clinical Affairs.  According to the petitioner, one of her responsibilities with HARI includes oversight of the Reporting Program.  However, in a subsequent telephone conversation with the petitioner, she clarified that she would not be overseeing the Reporting Program but rather would be attending monthly meetings concerning the Reporting Program and serving as HARI’s liaison to the DOH.  The petitioner advises that other attendees at these meetings include two (2) members of the DOH and other health quality professionals from area hospitals.  The petitioner represents that she has no supervisory authority at the meetings.  The petitioner represents that the common goal between the members of the work-group is accurate public reporting of hospital data.  The petitioner represents that her other responsibilities for HARI would include collaborating with DOH on statewide hospital emergency preparedness, data collection for cancer registry, and assisting with health care workforce development efforts.  The petitioner seeks guidance for the Ethics Commission as to whether aforementioned interaction between the petitioner, HARI, and DOH would violate the Code of Ethics.  

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.  To represent oneself before such agency is defined as participating in the presentation of evidence or arguments before the agency for the purpose of influencing the judgment of that agency in his or her own favor.  See R.I. Gen. Laws § 36-14-2(12).

Section 5(e)’s “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).

In the past, the Commission consistently has concluded that under the very strict, but very clear, language of section 5(e) public officials and employees may not represent themselves or others 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); 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).

Although the Commission has concluded that individuals subject to the Code may not represent themselves or others 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).

As an initial matter, the petitioner, in her current employment, will serve as a liaison between HARI and DOH at monthly meetings regarding a program that she previously served as Project Manager.  However, section 5(e)’s restrictions are not applicable since the petitioner will not be representing herself or HARI in the presentation of evidence or arguments to DOH or to the Reporting Program.  Instead, the petitioner will be responsible for attending said meetings in a collaborative effort with other members to decide how to best present hospital data for the purpose of accurate public reporting.  For these reasons, section 5(e) does not apply. 

With regard to other interaction with DOH, the petitioner represents that she will not be appearing or representing herself or HARI before the DOH on other clinical affairs issues.  Rather, she asserts that HARI and the DOH will be collaborating together in a joint effort to improve and advance clinical affairs in the State of Rhode Island.  Based upon the express representations made by the petitioner, section 5(e)’s revolving door restrictions do not extend to the petitioner collaborating with DOH on an equal, level playing field basis.  However, the petitioner should be cautioned that she may not use any confidential information she obtained while working for DOH to financially benefit herself or HARI.  R.I. Gen. Laws § 36-14-5(b), (c), (d).

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Post employment

Revolving door