Advisory Opinion No. 2008-39

Rhode Island Ethics Commission

Re: L. Anthony Cirillo, MD

QUESTION PRESENTED:

The petitioner, a former Chief of the Center for Emergency Preparedness and Response for the Rhode Island Department of Health (“DOH”), a state employee position, requests an advisory opinion as to whether he is prohibited from providing consultative program review services to Rhode Island Hospital (“the Hospital”) under the auspices of his consulting company, Emergency Management Consultants (“EMC”).

RESPONSE:

It is the opinion of the Ethics Commission that the petitioner, a former Chief of the Center for Emergency Preparedness and Response for the Rhode Island Department of Health (“DOH”), a state employee position, is not prohibited from providing consultative program review services to Rhode Island Hospital (“the Hospital”) under the auspices of his consulting company, Emergency Management Consultants (“EMC”), provided that he does not represent himself or others or act as an expert witness before the DOH prior to the expiration of one-year from his date of severance from state service.

The petitioner was employed by the University of Rhode Island as a Research Assistant Professor from September 2003 until April 12, 2008. During the span of his employment at URI, he was assigned as a consultant to the Department of Health where he served as Medical Director for the National Hospital Bioterrorism Preparedness Program (“NHBPP”), a federally funded grant program. He was also assigned to serve as the Chief of the Center for Emergency Preparedness and Response at the DOH; in this capacity he served as the Principal Investigator for both the NHBPP grant and the Public Health Emergency Preparedness (“PHEP”) grant, which are both programs designed to assist states in overall public health preparedness planning, federally funded by the US Department of Health and Human Services.

Since his separation from state service, the petitioner has formed his own consulting company, Emergency Management Consultants LLC (“EMC”), which provides consultative services to various healthcare and private sector entities that require assistance with planning and evaluation of public health emergency preparedness related projects.

The petitioner states that Rhode Island Hospital is currently undertaking just such a project, under a federally funded grant program (separate and apart from the NHBPP or PHEP grant programs that the petitioner worked under for DOH), called the Hospital Preparedness Program Partnership Grant (“HPPPG”), which is available on a competitive basis through the US Department of Health and Human Services to qualifying hospitals only and was awarded directly to the Hospital. This grant project involves work in three discrete areas: assisting hospitals in meeting national standards for education and staff training related to emergency preparedness core content; overseeing the establishment of improved telecommunications and technological capability and capacity within the healthcare system; and, establishing a pilot program within the state to do real-time patient tracking in the event of an emergency or disaster situation.

The petitioner represents that Rhode Island Hospital is now seeking an entity to perform an external review of their work toward accomplishing the goals and objectives established under their grant contract with the US Department of Health and Human Services. The petitioner states that, if was company was to take on such work, he would not be interacting with DOH at all; rather, he would be working directly with Hospital employees to review information regarding the Hospital’s progress toward meeting the benchmarks and timelines established in the goals outlined in the grant contract. The petitioner affirmatively states that he would not be representing himself, the Hospital, or anyone else, nor acting as an expert witness before DOH. Under this set of circumstances, the petitioner requests an advisory opinion as to whether there would be any prohibitive conflict of interest in his company, EMC, providing consultative program review services to Rhode Island Hospital as described herein, given his recent separation from state service on April 12, 2008.

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 has officially severed his position with his former agency. The legislative intent of this “revolving door” language presumably is to minimize any potential 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 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. 2008-30 (former Program Manager for Assisted Living Residences in Rhode Island, and Chief of Compliance for the Rhode Island Department of Health (“DOH”) may work as a per diem pharmacist at Rhode Island Hospital provided that he does not represent himself, the hospital, or anyone else, or act as an expert witness, before the DOH until one year has passed since his severance from state service); A.O. 2006-13 (the former Director of Nurse Registration and Nursing Education for the Office of Health Professionals at the DOH and the current Vice President of Clinical Affairs for the Hospital Association of Rhode Island may interact 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); 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). In this instance, the petitioner has stated that if his company, EMS, accepts the contract with Rhode Island Hospital, he would not be representing himself, Rhode Island Hospital, or anyone else, nor acting as an expert witness, before DOH, but rather, would be working directly with Rhode Island Hospital grant program staff.

In the facts as described by this petitioner, the work his company, EMS, would be doing in providing consultative program review services to Rhode Island Hospital does not appear to run afoul of the Code of Ethics, provided that, as described above, he does not represent himself, the Hospital, or anyone else, or act as an expert witness, before the DOH until one year has passed since his severance from state service.

Code Citations:

§ 36-14-2(7)

§ 36-14-5(b)

§ 36-14-5(c)

§ 36-14-5(d)

§ 36-14-5(e)(1)

§ 36-14-5(e)(2)

§ 36-14-5(e)(3)

§ 36-14-5(e)(4)

Related Advisory Opinions:

A.O. 2008-30

A.O. 2006-13

A.O. 99-125

A.O. 98-5

Keywords:

Post-Employment

Revolving Door