Advisory Opinion No. 2008-62 Rhode Island Ethics Commission Advisory Opinion No. 2008-62 Re: Sharon B. Rysk QUESTION PRESENTED The Petitioner, a former social caseworker in the Long Term Care Unit within the Department of Human Services, a state employee position, requests an advisory opinion as to whether she is prohibited by the Code of Ethics from working as an independent contractor with an attorney whose practice consists of filing medical assistance applications on behalf of his clients with the Department of Human Services, given that she would be assisting the attorney with the preparation of the applications. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a former social caseworker in the Long Term Care Unit within the Department of Human Services, a state employee position, from working as an independent contractor with an attorney whose practice consists of filing medical assistance applications on behalf of his clients with the Department of Human Services, notwithstanding the fact that she would be assisting the attorney with the preparation of the applications, provided that she does not have direct contact with, or represent the clients, the attorney, or anyone else, before the Department of Human Services for one year subsequent to her separation from public employment. Furthermore, her interactions with her former agency on behalf of these clients for the first year following her official severance date from public employment may only be ministerial, and not substantive, in nature. The Petitioner informs that she was employed by the Department of Human Services (“DHS”) as a social caseworker in the Long Term Care Unit until her retirement on September 26, 2008. The Petitioner advises that her duties consisted of evaluating medical assistance applications. The Petitioner states that she is considering working as an independent contractor with an attorney whose practice consists of filing medical assistance applications with DHS on behalf of his clients. The Petitioner represents that the attorney would actually file the applications with DHS, but that she would assist him with the preparation of the applications. The Petitioner further represents that she would not appear before DHS regarding any appeal or any other matter or attend any hearing on behalf of the attorney’s clients. As such, the Petitioner asks whether the Code of Ethics prohibits her from working as an independent contractor with the attorney, given that she would be assisting him the with the preparation of the applications which are then filed with DHS, her former agency. 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. 2008-6 (opining that a former Senior Medical Care Specialist for DHS could accept a job offer in a social work position at the Jean Jugan Residence, provided that she did not represent the residents, her employer, or anyone else before DHS for one year subsequent to her separation from public employment); 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 from service, 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 business associate 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 municipal service, was not prohibited from accepting post-municipal 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 clients of the attorney before DHS at anytime. Therefore, provided that the petitioner avoids any direct contact with DHS, and 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 working as an independent contractor with the attorney. 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. 2008-6 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