Advisory Opinion No. 2009-16 Rhode Island Ethics Commission Advisory Opinion No. 2009-16 Re: Brian P. Stern, Esq. QUESTION PRESENTED The Petitioner, the Chief of Staff for the Governor of the State of Rhode Island, a state employee position, requests an advisory opinion as to whether he is prohibited by the Code of Ethics from seeking and accepting appointment to a seat on the Rhode Island Judiciary, given his current employment as the Governor’s Chief of Staff. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, the Chief of Staff for the Governor, a state employee position, is not prohibited by the Code of Ethics from seeking and accepting appointment to a seat on the Rhode Island Judiciary, notwithstanding his current employment as the Governor’s Chief of Staff, given that he has greater than five years of uninterrupted state service, and thus, is exempt from the prohibition against seeking or accepting such employment pursuant to R.I. Gen. Laws § 36-14-5(o)(1) and (2). The Petitioner is currently the Chief of Staff (“Chief of Staff”) for the Governor of the State of Rhode Island (“Governor”), and has served in that position since March 1, 2007. In this capacity, the Petitioner states that he is a senior policy advisor to the Governor and serves in a confidential capacity. He further states that, while all other staff in the Office of the Governor are subordinate in the chain of command to the Petitioner, with the obvious exception of the Governor himself, historically and in practice three staff members have full open access to the Governor: the Petitioner himself, the Governor’s Executive Counsel (“Executive Counsel”), and the Governor’s Press Secretary. Prior to his appointment as Chief of Staff, the Petitioner states that he was employed by the State of Rhode Island in both the classified and unclassified service for a continuous period of eight years and three months in the following positions: from November 1998 to May 2000 as the Chief Securities Examiner of the Rhode Island Department of Business Regulation (“DBR”); from May 2000 to March 2004 as the Deputy Chief Legal Counsel to DBR; from March 2004 until January 2005 as Executive Counsel to the Rhode Island Department of Administration (“DOA”); and from January 2005 until February 2007 as the Executive Director of the DOA. The Petitioner states that he has recently submitted applications to the Judicial Nominating Commission (“JNC”) for two current judicial vacancies, Associate Justice of the Rhode Island Superior Court and Chief Judge of the Rhode Island District Court, respectively. The Petitioner states that on the same day that he filed his first application with the JNC, he also delivered a letter to the Governor [1] and the Governor’s Executive Counsel, removing himself from any participation in any aspect of the judicial selection process involving the vacancies he applied for, as well as any other judicial vacancies. The Petitioner represents that in the two years that he has served as the Governor’s Chief of Staff, the majority of the staff duties associated with the Governor’s selection of judicial appointees have been performed by the Executive Counsel, not the Petitioner, and that the Petitioner himself has only been present for the interviews of candidates in approximately one or two instances. On his part, the Petitioner has had intermittent occasion to view candidates’ application materials for the purpose of scheduling interviews, and is the person primarily responsible for interfacing with the Rhode Island Senate, once the Governor has made a final selection of appointees, for purposes of ensuring that the Senate’s advice and consent duties are expedited within the requisite timeframe. Additionally, he states that currently, he has removed himself from any participation in discussion about the JNC or appointments thereto, and has created an information barrier such that he does not have access to any applications or application materials, and will not participate in or have access to information about interviews with prospective judicial candidates, nor will he have discussions about judicial candidates or the JNC with the Governor. Finally, he represents that he has advised the JNC about this information barrier in his application cover letter to the JNC. Given this set of facts, the Petitioner requests an advisory opinion as to whether he is prohibited by the Code of Ethics from seeking and accepting an appointment to a seat on the Rhode Island Judiciary, given his current employment as the Governor’s Chief of Staff. Under the Code of Ethics, the Petitioner may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). An official will have an interest in substantial conflict with his or her official duties if it is likely that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, a business associate, an employer, or any business that the public official represents. See R.I. Gen. Laws § 36-14-7(a). Further, the Petitioner is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents. See R.I. Gen. Laws § 36-14-5(d). 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). Subsection 36-14-5(e)(4) extends these prohibitions for a period of one year after the Petitioner has officially severed his position with the agency. One of the legislative intents of this “revolving door” language presumably is to minimize any potential improper influence the former public employee may have with his former agency. Finally, and most pertinent to this Petitioner’s request, R.I. Gen. Laws § 36-14-5(o)(1) states that no person holding, “a senior policy-making, discretionary, or confidential position on the staff of any state elected official or the general assembly,” shall seek or accept any other employment by any state agency while serving in such position and for a one-year period thereafter. R.I. Gen. Laws § 36-14-5(o)(2), however, provides that: [n]otwithstanding the foregoing, a person holding a senior policy-making, discretionary, or confidential staff position who has a minimum of five (5) years of uninterrupted state service shall be exempt from the provisions of this section. “State service” as used herein means service in the classified, unclassified and nonclassified services of the state, but shall not include service in any state elective office. Id. It is the opinion of this Commission that the nature of the Petitioner’s position as Chief of Staff makes him subject to the prohibition of section 5(o)(1). The Petitioner further inquires whether his prior eight years and three months of continuous state employment place him within the exception carved out by section 5(o)(2) to the prohibition found at 5(o)(1); it is the opinion of this Commission that the Petitioner’s prior years of state employment place him squarely within the exception found at R.I. Gen. Laws 36-14-5(o)(2). While the Petitioner passes this first hurdle, the prohibition found in section 5(o)(1) is not the only provision in the Code applicable to this Petitioner’s circumstances. The next area of inquiry is whether the Petitioner’s acts in removing himself from his duties as Chief of Staff in regard to matters concerning the JNC and matters involving the list of judicial nominees forwarded from that entity to the Governor, including the application materials, interviews, and final selection and appointment of candidates to fill vacancies, are sufficient to avoid any conflicts of interest that would otherwise arise under R.I. Gen. Laws §§ 36-14-5(a), 5(d) and 7(a). In a long line of prior advisory opinions which dealt with instances in which conflicts arising out of nepotism were implicated, this Commission has consistently held that public officials may not take official actions regarding the employment, supervision, evaluation, appointment, classification, promotion, transfer, or discipline of family members, nor may they delegate such matters to any person subordinate to the public official in the chain of command. See, e.g., A.O. 2007-7; A.O. 2006-39; A.O. 2000-89; A.O. 2001-36; A.O. 2000-5; A.O. 98-115; A.O. 96-109; A.O. 96-118; A.O. 95-71. It is axiomatic that the same prohibitions adhere to matters regarding the employment, supervision, evaluation, appointment, classification, promotion, transfer, or discipline of the public official him or herself. In this instance, the Petitioner represents that he has removed himself from all matters concerning the JNC and future judicial appointments. The Petitioner further represents that the Governor’s Executive Legal Counsel, who has the primary staff responsibility in the majority of matters dealing with judicial appointments already, will assume the Petitioner’s former duties in these matters, as delegated to him directly by the Governor. Thus, the question that remains is whether the Governor’s delegation of the Petitioner’s former duties to a person subordinate in the chain of command to the Petitioner somehow results in a prohibited conflict of interest for the Petitioner. This Commission has previously approved alternate chains of command, provided that the resulting decision-making rises up the chain of command, rather than down to a subordinate. See A.O. 96-118 (concluding that the Code of Ethics did not prohibit the Secretary of State from hiring and employing the mother of his Chief of Staff since the Petitioner had devised both hiring and supervisory procedures that insulate the Chief of Staff from employment decisions that affected his mother). See also A.O. 2007-7 (opining that that the Newport City Solicitor may act as the appointing authority, in place of the City Manager, to appoint seven individuals who were candidates for employment with the Newport Police Department, notwithstanding that the City Manager’s son was one of seven candidates, provided that certain procedures were followed so that the City Manager was completely removed from all personnel decisions or matters that particularly affected his son financially); A.O. 2006-39 (opining that the son of the Chief of the North Providence Fire Department could apply for a position as a member of that department provided that the Chief did not participate in any aspect of the application process for any candidate prior to his retirement in March of 2007); A.O. 2000-5 (opining that the Chief of the Office of Food Protection at the Department of Health was not prohibited from serving in that position while his spouse served in a subordinate position in the same office, provided that certain procedures were followed so that neither the Petitioner nor his subordinates took action on personnel matters or matters that particularly affected his spouse financially); A.O. 96-109 (advising that the City of Cranston’s Director of Administration could accept appointment to that position where his spouse served as the City's Purchasing Agent if he did not participate in the day-to-day supervision of his wife and all personnel issues affecting his spouse were handled by the Mayor or an official who did not report to the Petitioner as Director of Administration). In this instance, while a subordinate has assumed the former duties of the conflicted public official, and potentially may, if the Petitioner is selected by the JNC as one of the final candidates for either position that he has applied for, be advising the Governor on the Petitioner’s own application and qualifications for the positions, all decision-making, including the delegation of duties to the Petitioner’s subordinate, rests solely with the Governor. While we are not without some concern at the Petitioner’s subordinate’s potential involvement in the Petitioner’s very own application for employment, in the set of facts as represented by the Petitioner, there is no action that he himself will have taken that is prohibited by the Code of Ethics. In short, neither the nature of the Petitioner’s current employment nor the stature which he seeks transforms that which is not otherwise a violation of the Code of Ethics into a conflict of interest. Additionally, while we have previously found that a conflicted public official may not delegate actions that would otherwise constitute a conflict of interest to a subordinate, we have given approval for a non-conflicted body to seek participation of that subordinate regarding the conflicted matter. See A.O. 2005-37 (opining that, while the Mayor of the Town of Cumberland, who was prohibited from participating in contract negotiations with the Cumberland Fraternal Order of Police due to certain conflicts of interest, and was also prohibited from seeking involvement of the Chief of Police (“Chief”) who was the Mayor’s subordinate, such prohibitions did not prevent the Town Council, several members of whom had replaced the Mayor in the negotiations, from seeking input or recommendations from the Chief or other department heads, the critical fact being that such participation was not sought by the Mayor, but rather by the non-conflicted negotiating team); A.O. 2000-16 (opining that while the Executive Director of the Rhode Island Housing and Mortgage Finance Corporation (RIHMFC) should not participate in any matters involving a non-profit corporation that employs his spouse as its Executive Director, and that rather, in situations where his involvement ordinarily would be required, such matters should be addressed by the Board of RIHMFC which acts as the Petitioner’s supervisor, the prohibition on the Petitioner’s participation in such matters did not require his staff to recuse on administrative matters where there are set procedures for handling them and where his only superior is a board that could not take on the work of the staff). Thus, based on prior advisory opinions and the pertinent provisions of the Code as cited, we opine that the Petitioner’s removal from matters involving the JNC and the selection of judicial nominees as forwarded to the Governor from that entity are consistent with R.I. Gen. Laws §§ 36-14-5(a), 5(d), 6 and 7(a). Finally, there remains the issue of whether the Petitioner’s application to and potential interviews with the JNC and with the Governor constitute representing himself, as that term is utilized and defined for purposes of R.I. Gen. Laws § 36-14-5(e) and Regulation 36-14-5015. It is the opinion of this Commission that applying for and interviewing for employment does not constitute the representation of oneself for purposes of R.I. Gen. Laws § 36-14-5(e)(1); to the extent that this Commission has previously found such activity to constitute “representation” as that term is utilized by that provision, we expressly reject such interpretation for purposes of this advisory request. See A.O. 96-85 (opining that, the Petitioner, a former Middletown School Committee member, may not apply for or interview for the Middletown Superintendent position prior to one year from the effective date of her resignation from the Middletown School Committee, and stating that, pursuant to R.I. Gen. Laws § 36-14-5(e)(1), “[r]epresentation could include submitting application materials or interviewing for a position”). See also A.O. 2000-60; A.O. 99-101; A.O. 99-94; A.O. 99-60; A.O. 97-117. To construe the prohibition in section 5(e) to prohibit a state or municipal employee from seeking advancement, transfer, or a wholly new position within public employment from their current employer in all instances would prohibit any state or municipal employee from seeking additional compensation, promotion, or inter- or intra-departmental transfer or movement; this is an absurd result that we specifically decline to recognize and will not apply in this Petitioner’s factual circumstance. That is not to say that the Code does not provide prohibitions on the seeking and accepting of public employment for various state and municipal elected and appointed officials and employees, but rather, that such prohibition does not emanate from R.I. Gen. Laws § 36-14-5(e), but rather, from the specific employment “revolving door” sections located throughout the Code, as for example, R.I. Gen. Laws § 36-14-5(o) as implicated by this Petitioner’s request. Thus, it is the opinion of this Commission that the Petitioner is not prohibited by R.I. Gen. Laws 5(e) or Commission Regulation 5015 from applying to and interviewing with the JNC or the Governor. In summary, it is the opinion of the Ethics Commission that: 1) while the Petitioner is subject to the prohibition found at R.I. Gen. Laws § 36-14-5(o)(1), he falls squarely within the exception to that provision found at R.I. Gen. Laws § 36-14-5(o)(2); 2) the Petitioner’s removal from matters involving the JNC and the selection of judicial nominees as forwarded to the Governor from that entity are consistent with R.I. Gen. Laws §§ 36-14-5(a), 5(d), 6 and 7(a); and 3) neither R.I. Gen. Laws § 36-14-5(e) nor Commission Regulation 5015 prohibit the Petitioner from applying to and interviewing with the JNC or the Governor. In short, nothing in the set of facts as presented by the Petitioner presents a prohibited conflict of interest. Code Citations : 36-14-5(a) 36-14-5(d) 36-14-5(e) 36-14-5(o) Commission Regulation 36-14-5015 Other Law Cited : R.I. Const., article X, sec. 4 Related Advisory Opinions : A.O. 2007-7 A.O. 2006-39 A.O. 2005-37 A.O. 2001-36 A.O. 2000-89 A.O. 2000-60 A.O. 2000-5 A.O. 99-101 A.O. 99-94 A.O. 99-60 A.O. 97-117 A.O. 96-109 A.O. 96-118 A.O. 96-85 A.O. 95-71 Keywords : Public Employment Revolving Door