Advisory Opinion No. 2008-46 Rhode Island Ethics Commission Advisory Opinion No. 2008-46 Re: Paul C. Dolan QUESTION PRESENTED: The petitioner, Deputy Chief of Urban and Community Forestry (“Deputy Chief”) within the Department of Forest Environment (“DFE”), a sub-division of the Rhode Island Department of Environmental Management (“DEM”), a state employee position, requests an advisory opinion as to whether upon retirement, he is prohibited by the Code of Ethics from accepting the position of Urban and Community Forestry Coordinator with a private employer. RESPONSE: It is the opinion of the Ethics Commission that the petitioner, Deputy Chief of Urban and Community Forestry (“Deputy Chief”) within the Division of Forest Environment (“DFE”), a sub-division of the Rhode Island Department of Environmental Management (“DEM”), a state employee position, is prohibited by the Code of Ethics from accepting the position of Urban and Community Forestry Coordinator with a private employer, given that the position would require him to represent himself and others before his former agency on matters other than those ministerial in nature prior to the expiration of his one year severance from state service, as prohibited by R.I. Gen. Laws § 36-14-5(e). The petitioner currently serves as the Deputy Chief of Urban and Community Forestry within the Division of Forest Environment, a Division of the Rhode Island Department of Environmental Management. Prior to promotion to his current position, the petitioner served as Urban and Community Forestry Coordinator within the DFE from 1999 until December of 2006, at which time he was made Acting Deputy Chief of Urban and Community Forestry, and subsequently, Deputy Chief, his current position from which he is considering retiring. He states that he is considering retiring from his current position. He represents that since his promotion to Acting Deputy Chief, and then to full-time Deputy Chief, the position he left as Urban and Community Forestry Coordinator has remained vacant. The petitioner represents that the vacant position in question has for sometime been provided for by federal grant funding from the United States Forest Service (“USFS”), and further states that the USFS has requested that the vacancy be filled or the DFE will risk losing the grant funding. In past years, the position was considered a state employee position; however, the petitioner represents that the state failed to fill the position since the petitioner vacated it and is not currently seeking to fill the position. The petitioner states that rather, a non-profit organization, the Rhode Island Resource Conservation and Development Area Council (“RCDC”), has applied for grant funds from the USFS, and accordingly, the application and hiring process is being conducted by the RCDC, in conjunction with DEM. Attached to his request for an advisory opinion, the petitioner included a copy of the “Job Announcement” for this vacancy as issued by the RCDC, which describes the position as “the key position in the cooperative partnership between the [RCDC] and [DEM].” Additionally, the petitioner states that the person serving in the position, once filled, would be supervised by the person in the petitioner’s current position and would be housed in the same office as that person. The petitioner states that if he does in fact apply for the position, he would retire prior to submitting his resume, thus removing himself from the selection process (other than as a candidate for the position) entirely, avoiding any conflicts inherent in his participation in that procedure. Given this set of facts, the petitioner requests an advisory opinion as to whether he is prohibited by the Code of Ethics from applying for, and if selected as the successful candidate, accepting the position of Urban and Community Forestry Coordinator with a private non-profit entity, the RCDC, given his current employment as Deputy Chief of Urban and Community Forestry within the DEM. Under the Code of Ethics, a public official may not participate in any matter, or engage in any business, employment, transaction or professional activity, in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). An official will have an interest in substantial conflict with his official duties if it is reasonably foreseeable that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a). He also is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d). Furthermore, 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. In the past, the Commission has consistently 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. 2007-44 (opining that the License Administrator for the City of Providence, on his retirement from state service, was prohibited from participating in substantive interactions with his former agency, the Providence Board of Licenses, for the first year from his official severance date, as part of the provision of consulting services for license-holders and potential license-holders in the City of Providence, but was not prohibited from being involved in interactions with that agency that were ministerial, and not substantive, in nature); A.O. 2007-35 (opining that a former paid intern for the Office of the Treasurer could not represent a private advertising 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, within one year of leaving the Treasurer’s Office, but could interact with the Treasurer’s Office on ministerial matters on behalf of the firm, such as coordination and correspondence, that do not involve the Treasurer’s decision-making authority). In this petitioner’s set of factual circumstances, the potential 5(e) conflict arises out of the fact that the vacancy is no longer considered to be a state employee position, but rather, funding is being provided for the position by a federal grant through the conduit of a private non-profit entity (the RCDC); thus, if the petitioner is hired to fill the position, he will have severed from state service, and would by the very nature of the position, be in violation of 5(e) by his ongoing representation of the RCDC before his former state agency prior to the expiration of the one-year period fixed by R.I. Gen. Laws § 36-14-5(e)(4). See A.O. 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). Had the position remained a state employee position, this potential conflict of interest would have been avoided See A.O. 2003-51 (opining that under the Code of Ethics, a state agency is not an individual or business entity and therefore, a former DEM employee would not violate the provisions of section 5(e) were he to represent another state agency before DEM in the discharge of those official state duties during the one year period following his severance of DEM employ). Thus, it is the opinion of this Commission, that even if, assuming arguendo, the petitioner was able to avoid any potential conflicts of interest inherent in the application and interview process, the position would require him to represent himself and others before his former agency, DEM, and thus would be in violation of R.I. Gen. Laws § 36-14-5(e), which prohibits persons subject to the Code from representing themselves, or any other person, or acting as an expert witness before their former agency for a period of one year following their severance from service from that agency; the Commission opines thusly in light of the petitioner’s representation that the position in question, which is with a private non-profit entity (the RCDC), reports to, and is supervised by, the Deputy Chief of Urban and Community Forestry within the DFE, and the fact that the job announcement itself describes the position as “the key position in the cooperative partnership between the [RCDC] and [DEM].” See A.O. 2002-37 (opining that pursuant to R.I. Gen. Laws § 36-14-5(e)(4), a former engineer for the Total Maximum Daily Load (TMDL) Program for DEM may not have any personal involvement with a matter before the TDML Program that goes beyond ministerial activities for a period of one-year following his official severance of employment with DEM). Thus, it is the conclusion of this Commission that if the petitioner is to retire from state service in September of 2008, he would be prohibited by the Code of Ethics from accepting private employment in the position of Urban and Community Forestry Coordinator prior to the expiration of his one year severance from state service, given the prohibitions found at R.I. Gen. Laws § 36-14-5(e). 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. 2008-30 A.O. 2007-44 A.O. 2007-35 A.O. 2003-51 A.O. 2002-37 Keywords: Post Employment Revolving Door