Advisory Opinion No. 2006-42 Advisory Opinion No. 2006-42 Re: Irving J. Owens QUESTION PRESENTED: The petitioner, the former Rhode Island State Fire Marshal, a state appointed position, requests an advisory opinion as to whether he may provide consulting services to private companies, national services, and schools both in Rhode Island and other states. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, the former Rhode Island State Fire Marshal, a state appointed position, from providing consulting services to private companies, national services, and schools provided that: 1) he does not represent his employer’s or his business associate’s interests before his former agency for a period of one-year following his official severance of employment; and 2) he does not disclose confidential information obtained during the course of his state employment. The petitioner informs that he served as the State Fire Marshal until his retirement on December 24, 2005. He advises that he wishes to provide consulting services to private companies, national services such as the National Association of State Fire Marshals and the National Fire Protection Association, and schools both in Rhode Island and in other states. The petitioner represents that while there may be some instances where he will need to appear before Fire Safety Code Board of Appeal and Review on behalf of his employers, such appearances would be after his one-year prohibitive period has expired. The petitioner seeks guidance from the Commission as to whether such consulting services would run afoul of the Code of Ethics. The Code of Ethics provides that 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. 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 his 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 his 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, his 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. 2005-54 (opining that the Code of Ethics does not prohibit 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, 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). See also 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). 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. 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 providing consulting services to private companies, national services or schools in Rhode Island. However, pursuant to R.I. Gen. Laws § 36-14-5(e)(4), the petitioner may not represent his employer’s or business associate’s interests before the Office of the State Fire Marshal that goes beyond ministerial activities (e.g., hand delivering documents to or reviewing files at the agency) for a period of one-year following his 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). Finally, the petitioner may not use any confidential information he obtained while working for the Office of the State Fire Marshal 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: 2005-54 2001-63 2001-52 2001-33 2001-26 2000-66 2000-60 2000-19 Keywords: Post employment Revolving door