Advisory Opinion No. 2008-2 Rhode Island Ethics Commission Advisory Opinion No. 2008-2 Re: Thomas L. Dwyer QUESTION PRESENTED: The petitioner, former Associate Director of the Department of Children, Youth and Families (“DCYF”), a state employee position, requests an advisory opinion as to whether he is prohibited by the Code of Ethics from authoring a response to a request for proposals (“RFP”) issued by the Department of Human Services (“DHS”), calling for the creation of a network of residential care providers for youth, given that some of the youth to whom the proposal will apply are in the custody of or otherwise involved with DCYF, the petitioner’s former agency. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, former Associate Director of the Department of Children, Youth and Families (“DCYF”), a state employee position, from authoring a response to a request for proposals (“RFP”) issued by the Department of Human Services (“DHS”), notwithstanding the fact that the RFP calls for the creation of a network of residential care providers for youth, some of whom are in the custody of or otherwise involved with DCYF. The petitioner is the former Associate Director of the Department of Children, Youth and Families. As an Associate Director at DCYF, the petitioner was responsible for the Division of Child Welfare Services. He states that he retired from that position on September 29, 2007. According to its webpage, DCYF is composed of several different divisions: Child Welfare Services, which includes child protective services, intake, family services, foster care and adoption; Juvenile Correctional Services; Children’s Behavioral Health and Education; and Administrative Services. The DCYF web site states that the goal of the Child Welfare division of DCYF “is to promote, safeguard and protect the overall well-being of children and families, to intervene on behalf of children who have been abused or neglected, and to work with children and families to assure that every child has a permanent, safe, and nurturing environment in which to achieve their maximum potential.” The petitioner states that, subsequent to his retirement from state service, he has been asked by a private social service agency in Rhode Island, Gateway Services, Inc., to author a response to an RFP to be issued by the Department of Human Services, calling for the creation of a network of residential care providers to care for youth, at least some of whom are in the custody of, or otherwise involved with, DCYF. DHS is composed of several divisions including: Services for Children and Families, such as child care, food stamps and medical assistance; Services for Adults, including public assistance, medical assistance and rehabilitation services; and Services for the Elderly, including food stamps, long-term care, and medicare. The petitioner represents that while DCYF and DHS are both agencies whose coordination in a number of areas, including public policy and budgeting, is overseen by the Executive Office of Health and Human Services (“OHHS”) and indeed do, to some extent, overlap in terms of overall general purpose and the populations which they serve, DCYF and DHS are separate agencies within the state government, with neither agency supervising, or being subordinate to, the other. The petitioner states that in order to author a response to the DHS RFP, it will be necessary for him to meet with multiple agencies with a view toward developing a network of service providers and determining how the network will be organized and structured. The petitioner further states that the agencies which he would be meeting with would be private social service agencies, such as Family Services, Inc. and Communities for People, and not state social service agencies. The petitioner affirmatively represents that while any RFP response that he authors will certainly go before DHS, as that is the agency which issued the RFP in the first instance, he will not be representing himself or anyone else, at any time in connection with this activity, before his former agency, DCYF. As such, the petitioner requests an advisory opinion as to whether any conflict of interest prohibited by the Code of Ethics would arise if he were to author a response to the RFP issued by DHS, given that he separated from state service as Associate Director of DCYF on September 29, 2007. Pursuant to R.I. Gen. Laws § 36-14-5(e)(1) and (2), 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. A “person” is defined as an individual or business entity. R.I. Gen. Laws § 36-14-2(7). R.I. Gen. Laws § 36-14-5(e)(3) further provides that the petitioner may not act as an expert witness before his agency with respect to any matter the agency’s disposition of which will or can reasonably be expected to directly result in an economic benefit or detriment to him, a family member, business associate or any business by which he is employed or represents. Subsection 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner officially has severed his position with the agency. The legislative intent of this “revolving door” language presumably is to minimize any potential improper influence the former public employee may have with his former agency. Finally, 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. In this instance, the petitioner inquires not whether he may represent himself or others before a division within DCYF other than Child Welfare Services, or before DCYF at all, but rather, whether he may represent himself or others before DHS, which is an entirely separate agency within the state government, neither supervisory nor subordinate to DCYF. Given his statement that he will not be representing himself or others before DCYF at any time in connection with this RFP, nothing in the Code of Ethics prohibits him from representing himself or others before DHS. See A.O. 2001-63 (opining that the Director of Communications for the Office of the General Treasurer, upon her resignation from that position, may contract with a private public relations firm which itself has contact with state agencies other than the General Treasurer, as section 5(e)’s revolving door restrictions do not extend to the petitioner having substantive involvement in matters before other state agencies or departments, provided that in her previous employment with the General Treasurer she did not exercise supervisory or policy-making authority within the particular division or agency); A.O. 2001-42 (opining that while the former Little Compton Building Official may not have any personal involvement with a matter before the Office of the Building Official beyond ministerial activities for a period of one-year following his official severance of employment with that agency, section 5(e)’s revolving door restrictions do not extend to the petitioner having substantive involvement in matters before other municipal departments or entities within the Town of Little Compton, such as the Zoning Board of Review). As such, the petitioner is not prohibited by the Code of Ethics from authoring a response to the RFP issued by DHS. The petitioner is encouraged to seek further guidance from this Commission if and when he has occasion to have dealings with his former agency, DCYF, within the one year period following his severance from state service. Finally, the petitioner may not use any confidential information he obtained while working for DCYF for financial gain. See R.I. Gen. Laws § 36-14-5(b), (c) and (d). Code Citations: 36-14-2(7) 36-14-5(a) 36-14-5(b) 36-14-5(c) 36-14-5(d) 36-14-5(e) 36-14-7(a) Related Advisory Opinions: A.O. 2003-51 A.O. 2001-63 A.O. 2001-52 A.O. 2001-42 A.O. 98-11 A.O. 98-5 Keywords: Post-Employment Private Employment Revolving Door