Advisory Opinion No. 2008-6

Rhode Island Ethics Commission

Advisory Opinion No. 2008-6

Re:  Denise Matisewski

QUESTION PRESENTED:

The petitioner, a former Senior Medical Care Specialist for the Department of Human Services (“DHS”), a state employee position, requests an advisory opinion as to whether she is prohibited by the Code of Ethics from accepting a job offer in a social work position at the Jeanne Jugan Residence (“the Residence”), given that the pending position would require making referrals for the medical assistance eligibility review of residents to DHS, 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,  a former Senior Medical Care Specialist for the Department of Human Services (“DHS”), a state employee position, from accepting a job offer in a social work position at the Jean Jugan Residence (“the Residence”), notwithstanding the fact that the pending position would require making referrals for the medical assistance eligibility review of residents to DHS, the petitioner’s former agency, provided that she does not represent those residents, her employer, or anyone else before DHS for one year subsequent to her separation from public employment.  Furthermore, her interactions with DHS on behalf of these residents for the first year following her official severance date from public employment may only be ministerial, and not substantive, in nature.

The petitioner represents that for approximately thirty years she worked for the Department of Human Services in various positions that dealt with the Rhode Island Medicaid program (“Medicaid”) and its beneficiaries.  Most recently, her position was that of Senior Medical Care Specialist; this position included responsibilities such as overseeing the medical assistance program for SSI recipients, troubleshooting and assisting beneficiaries to access various benefits, assisting providers to get claims paid, supervising the statewide Medicaid customer service line, and assisting DHS eligibility staff statewide.

The petitioner states that, subsequent to her retirement from state service on December 22, 2007, she has been offered a position as a social worker by a non-profit, long-term care/assisted living facility in Rhode Island, the Jeanne Jugan Residence.  The position would require the petitioner to take on various social work duties and responsibilities including, inter alia, the following:  conducting pre-admission interviews; obtaining all necessary information to complete a social history; participating in comprehensive assessments and care plans; establishing and maintaining relationships with the residents, the residents’ families and/or legal representatives; implementing social service interventions; providing assistance in the establishment and participation of groups such as resident, family council, and support groups; establishing and maintaining relationships with outside agencies to obtain resources and services related to the residents’ special needs, including, and most pertinent to this petitioner’s request, making referrals to DHS for Medicaid eligibility.

The petitioner represents that in making referrals for the medical assistance eligibility review of a resident to DHS, she would only be required to inform the resident, as well as the resident’s family or legal counsel, as to which long-term care office within DHS they would need to make contact with, most often the East Providence long-term care office, and that the petitioner herself would not be making the contact with DHS;  additionally, she states that further interactions in regard to the resident’s eligibility would occur between the resident and the appropriate DHS long-term care office, without her involvement.  She states that in general, the various long-term care offices control the entire process, making appointments with the resident and the resident’s family.  She states that it is certainly foreseeable that at different points in the process DHS may make contact with the social worker at the Residence, in order to obtain various documents (such as prior discharge papers and medical diagnoses) or discrete pieces of factual information about a particular resident from the individual residents’ files, but that would only require the social worker to forward the document(s) or information to DHS, and would not require any substantive interaction or discretionary activity.  The petitioner further states that she would be completely absent from the Medicare eligibility process and would be making no eligibility determinations on behalf of the residents, most of whom are indigent and on Medicare already.  The petitioner further states that the Administrator of the Residence has specifically represented to the petitioner that she would not be advocating on behalf of the residents with regard to their applications for medical assistance, nor representing them, or anyone else, at appeals hearings before DHS.  Finally, she represents that if any matter involving DHS should arise requiring contacts of more than a ministerial nature, she would refer the matter to the Administrator of the Residence, and refrain from participating in compliance with 36-14-5(e)(4).

Given this set of facts, the petitioner requests an advisory opinion as to whether her acceptance of this offer of employment from the Jeanne Jugan Residence facility would be prohibited by the Code of Ethics.  In the petitioner’s original request, she also inquired into another offer of employment at Rhody Health Partners and Connect Care Choice, but now advises that she has since declined this offer.

Pursuant to R.I. Gen. Laws § 36-14-5(e)(1) and (2), 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.  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 her 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 her, a family member, business associate or any business by which she is employed or represents.

Subsection 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner officially severed her position with the agency.  See  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 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).

The petitioner must also refrain from acting as an expert witness before DHS on behalf of any employer for a period of one year after leaving her 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 legislative intent of this “revolving door” language presumably is to minimize any potential improper influence the former public employee may have with her 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 her official employment, particularly for the purpose of obtaining financial gain.

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. 2007-44 (opining that the License Administrator for the City of Providence, on his retirement from state service, was not prohibited from accepting post-state service employment with license-holders and potential license-holders in the City of Providence, provided that any activities he performed for those employers for the first year from his official severance date that involve interaction with the Providence Board of Licenses were ministerial, and not substantive, in nature); 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).

In the facts of this petitioner’s request, she has affirmatively stated that she would not be representing the residents of the Jean Jugan Residence or her future prospective employer before DHS at anytime; she has further stated that while she will be referring residents and their families or attorneys to the various long-term care offices within DHS, it would be the residents themselves and their families that will be making the contact with DHS.  Additionally, she states that any contact she may have with DHS would be limited to ministerial acts such as photocopying and forwarding documents from the residents’ files, upon request from DHS, or simply verifying factual information located within the files over the phone.  Finally, she represents that if any matter involving DHS should arise requiring something beyond a ministerial action, she would refer the matter to the Administrator of the Residence, and refrain from participating in compliance with  36-14-5(e)(4).  Therefore, provided that the petitioner refrains from appearing before DHS or any of its members or staff for a period of one (1) year after the date of her official severance from her position there, the provisions of 5(e) do not prohibit her from accepting employment at the Residence.

Finally, the petitioner is encouraged to seek further guidance from this Commission if and when she has occasion to have dealings with her former agency, DHS, beyond ministerial acts, within the one year period following her severance from state service. 

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. 2007-44

A.O. 2007-35

A.O. 2006-42

A.O. 2003-43

A.O. 96-84

Keywords:

Post-Employment

Private Employment

Revolving Door