Advisory Opinion No. 2007-44 Advisory Opinion No. 2007-44 Re: Richard H. Aitchison QUESTION PRESENTED The peitioner, the License Administrator for the City of Providence, a municipal employee position, requests an advisory opinion as to whether it would be a violation of the Code of Ethics for him to actively seek out and engage license holders and potential license holders in the City of Providence as private consulting clients upon his retirement from public employment, given that in his current work as License Administrator he is involved in the daily operations of the City of Providence Board of Licenses (“the Board”). RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, the License Administrator for the City of Providence, a municipal employee position, may actively seek out and engage license holders and potential license holders in the City of Providence as private consulting clients upon his retirement from public employment, provided that he does not represent those clients before the City of Providence Board of Licenses (“the Board”) for one year subsequent to his separation from public employment. Furthermore, his interactions with the Board on behalf of these employers for the first year following his official severance date from public employment may only be ministerial, and not substantive, in nature. The petitioner represents that he is currently employed as the License Administrator for the City of Providence. As License Administrator, the petitioner represents that his primary duty is to manage the daily operations of the Board of Licenses, including the following activities: determining the yearly schedule of hearing dates; receiving letters and correspondences on behalf of the Board and initiating responses and conducting liaison as necessary; attending all hearings; overseeing the preparation of the hearing docket, including notification to parties and scheduling with attorneys; working closely with the Board’s legal counsel, who is an Assistant City Solicitor for the City of Providence; updating Board members on recent relevant legal opinions, statutes and ordinances; working with state and city agencies whose actions impact the licensing process; managing payroll and scheduling for five full-time employees; preparing the departmental budget for the Board’s approval; overseeing incoming revenues received; and finally, facilitating the flow of paperwork between the Office of the License Administrator and the Board. The petitioner represents that after his separation from public employment at the time of his retirement, he wishes to solicit license holders and potential license holders within the City of Providence as private clients for whom he would do consulting work in the nature of preparing materials and processing license applications. The petitioner states that he would not represent such potential clients, or anyone else, before the Board for at least one year after his separation date from public employment, in compliance with R.I. Gen. Laws § 36-14-5(e)(4), which prohibits public employees from representing themselves or others before any state or municipal agency by which he or she is employed “for a period of one year after he or she has officially severed his or her position with said state or municipal agency . . . .” As the petitioner represents that he only desires to begin this private consultation work after his retirement as License Administrator, the applicable portions of the Code are R.I. Gen. Laws § 36-14-5(e)(4), as noted above, and Commission Regulation 36-14-5016(b). The revolving door and post-employment restrictions set out in the above-referenced portions of the Code prohibit a former public official or employee from representing him or herself or others before a state or municipal agency by which he or she was employed for a period of one year after severing his or her service with the state or municipal agency. See e.g., A.O. 2006-42 (opining that the former Rhode Island State Fire Marshal may provide consulting services to private companies, national services, and schools, provided that he did not represent his employers’ or his business associates’ interests before his former agency for a period of one year following his official severance of employment, and that he did not disclose confidential information obtained during the course of his state employment); A.O. 2003-43 (opining that the Staff Director for the Rhode Island Water Resources Board may accept private employment as the Executive Director for the Rhode Island Water Works Association immediately following his retirement from the Rhode Island Water Resources Board, provided that he did not appear before his former board for a period of one year after his retirement). 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. 2007-35 (opining that a former paid intern for the Office of the Treasurer could work for a private advertising firm within one year of leaving the Treasurer’s Office, provided that she did not represent the firm before the Office of the Treasurer or participate in the presentation of arguments before the Treasurer’s Office for the purpose of influencing the Treasurer’s decision-making or judgment, but may interact with the Treasurer’s Office on ministerial matters, such as coordination and correspondence, that do not involve the Treasurer’s decision-making authority). Therefore, provided that the petitioner refrains from appearing before the Board of Licenses or any of its members or staff concerning matters within the Board of Licenses’ jurisdiction for a period of one (1) year after the date of his official severance from his position there, the provisions of 5(e) do not prohibit his private consultation work for clients who themselves appear before the Board. C.f. A.O. 99-125 (opining that, while a former employee of the Rhode Island Department of Health’s Office of Drinking Water Quality could not himself represent clients before his former agency, an independent firm representing his client using his firm’s work was not prohibited from doing so). The petitioner must also refrain from acting as an expert witness before the Board on behalf of private clients for a period of one year after leaving his public employ. See R.I. Gen. Laws § 36-14-5(e)(3); Commission Regulation 36-14-5016(b)(2). See also A.O. 96-84 (opining that a former Jamestown Planning Board member was prohibited from appearing as an expert witness before the Planning Board for one year from the petitioner’s official severance from the Planning Board). The Commission concludes that the Code of Ethics does not per se prohibit the petitioner from accepting post-state service employment with license-holders and potential license-holders in the City of Providence, provided that any activities he performs for these employers for the first year from his official severance date that involve interaction with the Providence Board of Licenses are ministerial, and not substantive, in nature. Finally, R.I. Gen. Laws §§ 36-14-5 (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. Code Citations : Commission Regulation 36-14-5016(b)(2) 36-14-5 (c) 36-14-5 (d) 36-14-5 (e)(4) Related Advisory Opinions : A.O. 2007-35 A.O. 2007-8 A.O. 2006-42 A.O. 2003-43 A.O. 99-125 A.O. 96-84 Keywords : Post-Employment Revolving Door