Advisory Opinion No. 2009-24 Rhode Island Ethics Commission Advisory Opinion No. 2009-24 Re: Michael P. Jolin QUESTION PRESENTED The Petitioner, former Deputy Chief of Legal Services at the Rhode Island Department of Business Regulation, a state employee position, requests an advisory opinion as to whether he is prohibited by the Code of Ethics from accepting a part-time instructor position with the Rhode Island Association of Realtors. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, former Deputy Chief of Legal Services at the Rhode Island Department of Business Regulation, a state employee position, is not prohibited by the Code of Ethics from accepting a part-time instructor position with the Rhode Island Association of Realtors. The Petitioner is a former Deputy Chief of Legal Services at the Rhode Island Department of Business Regulation (“DBR”), having left that position on May 8, 2009. He is now a Judge Advocate in the United States Army and currently works as a Federal Civilian Technician for the Rhode Island Army National Guard. The Petitioner represents that in his former position at DBR, his responsibilities included advising the real estate administrator on the statutes and regulations pertaining to real estate licensure, bringing enforcement actions against licensees based on actionable complaints, and serving as legal counsel to the Real Estate Commission (“REC”), which, pursuant to R.I. Gen. Laws § 5-20.5-12, is an entity “within the department of business regulation” which assists the Division of Professional Regulation in implementing a recertification program and “shall have a policy-making role in the preparation and composition of the examinations to be administered” by that division. Id. The REC is also charged with “adopt[ing] reasonable rules and regulations to carry out its purposes.” Id. Since leaving state employment, the Petitioner states that he has been offered a part-time instructor position by the Rhode Island Association of Realtors (“RIAR”), a non-profit corporation, to teach a three-hour course on Rhode Island real estate licensing law. The Petitioner further represents that the course has been part of RIAR’s pre-licensing and continuing education curricula for several years and that the course covers pertinent state laws and regulations pertaining to real estate licensure. He states that he will be paid $50 per class hour and that RIAR offers the course six to ten times per year, depending on the demand. The Petitioner affirmatively represents that the part-time instructor position that he has been offered does not entail representing RIAR, its members, or any other licensee before DBR or REC. Additionally, he states that DBR recently renewed approval of the RIAR course as of November 8, 2008, for three years, and thus, RIAR will not need to submit the course to DBR for approval again until 2011. However, since instructors must also be approved by REC, the Petitioner states that RIAR will forward the Petitioner’s resume to DBR, with a letter setting forth the Petitioner’s qualifications; these documents are subsequently forwarded to REC, which will then review the Petitioner’s qualifications and vote to approve him as a qualified instructor. The Petitioner states that he himself will have no interaction with DBR or REC, nor will he represent himself, or anyone else, or act as an expert witness before DBR or REC. Given this set of facts, the Petitioner requests an advisory opinion as to whether he is prohibited by the Code of Ethics from accepting employment with RIAR as a part-time instructor. Pursuant to R.I. Gen. Laws § 36-14-5(e)(1) and (2), persons subject to the Code of Ethics may not represent themselves or any other “person” before any state or municipal agency of which they are a member or by which they are 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 persons subject to the Code may not act as expert witnesses before their 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 the official or employee, a family member, business associate or any business by which he or she 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 the agency. The definitional section of the Code of Ethics provides that a person represents “him or herself before a state or municipal agency if he or she participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of the agency in his or her own favor.” R.I. Gen. Laws § 36-14-2(12). Additionally, Commission Regulation 36-14-5016 states that a person represents him or herself if, pursuant to his or her authorization and/or direction, another person participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of the agency in his or her favor.” The Commission has issued numerous advisory opinions interpreting section 5(e)(4)’s requirements. See A.O. 2008-62 (opining that a former social caseworker in the Long Term Care Unit within the Department of Human Services (“DHS”), while not prohibited from working as an independent contractor with an attorney whose practice consists of filing medical assistance applications on behalf of his clients with DHS, must avoid any direct contact with DHS, and refrain 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); 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). 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. Although the Commission has concluded that individuals subject to the Code may not represent themselves 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 involved 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 could interact with the Treasurer’s Office on ministerial matters, such as coordination and correspondence, that did not involve the Treasurer’s decision-making authority). It is worth noting that Commission Regulation 36-14-5006, entitled “Employment From own Board,” which prohibits elected and appointed officials from accepting appointment or election to positions that require approval by the body the official is a member of, is inapplicable to this Petitioner’s set of circumstances, as this Petitioner’s former position as Deputy Chief of Legal Services at DBR was neither an elected nor appointed position. In this set of facts, while the Petitioner was never a voting member of REC, he did serve as legal counsel to that entity as part of his full-time employment duties at DBR. In the past, Section 5(e) has repeatedly been cited by the Commission in advisory opinions as being applicable to municipal Solicitors relative to the boards and agencies for which they represent and provide counsel. See A.O. 2003-49 (opining that the Assistant Solicitor for the Town of Lincoln was prohibited by section 5(e) from appearing before the Town Council, Zoning Board and Planning Board, given that he occasionally represented the Town in Superior Court in zoning appeals and litigation against the Town Council and Planning Boards); A.O. 2001-30 (section 5(e) applies to Providence Senior Assistant Solicitor wishing to represent himself before Providence Historic District Commission (HDC), Zoning Board and other municipal agencies regarding repairs and modifications to be performed on his rental property); A.O. 2000-50 (section 5(e) applies to Lincoln Assistant Solicitor wishing to represent himself and private clients before Zoning Board and Town Council); A.O. 2000-45 (section 5(e) applies to former Jamestown Solicitor wishing to represent himself before Jamestown Zoning Board regarding application for property abutting his residence); A.O. 97-85 (section 5(e) applies to Central Falls Solicitor wishing to testify at Central Falls Liquor Board hearing); A.O. 97-71 (section 5(e) applies to New Shoreham Solicitor wishing to represent private clients before Zoning Board); A.O. 95-108 (section 5(e) prohibits Hopkinton Solicitor from representing private client before Town Council). Applying the above cited analysis to this Petitioner’s employment duties as legal counsel to the REC, it is the opinion of this Commission that this Petitioner is prohibited from representing himself or others or acting as an expert witness before REC prior to the expiration of his one year severance from state service. Thus, the crux of the matter becomes whether the forwarding of the Petitioner’s resume by the Petitioner’s potential employer, RIAR, to the REC and the REC’s subsequent consideration of the Petitioner’s qualifications as a potential instructor constitute the representation of himself for purposes of R.I. Gen. Laws § 36-14-5(e)(4). Most especially relevant in the instant case is Advisory Opinion 98-111, in which the Commission was presented with a very similar set of facts to this Petitioner’s. In that advisory opinion, sitting members of the Real Estate Commission asked whether they were prohibited by the Code of Ethics from teaching continuing education courses for real estate agents. See id. In that advisory, this Commission opined that Real Estate Commissioners were not prohibited from teaching such courses provided that they recuse from all matters coming before the REC concerning the regulation of such continuing education courses and that they not submit an application for course accreditation to the REC or appear before that entity. See id. In the instant case, DBR recently renewed approval of the RIAR course as of November 8, 2008, for three years, and thus, the issue of Petitioner submitting the course to DBR for approval is not a factor. However, Advisory Opinion 98-111 does not specifically address the particularized issue raised by this Petitioner’s request, that is, whether the REC’s examination of his resume for instructor approval constitutes representing himself for purposes of 5(e)(4). More recently, in Advisory Opinion 2009-16, in which the Governor’s Chief of Staff was applying for judicial vacancies for which appointment by the Governor would be a necessary step, this Commission stated that “[i]t 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).” The rationale provided for the Commission’s analysis was that “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,” a result which the Commission found to be absurd. This Petitioner’s circumstances are distinguishable from those of the Petitioner in Advisory Opinion 2009-16 in two notable ways: 1) he is applying, not to his former agency for employment, which according to the aforementioned advisory opinion would not violate section 5(e), but rather to a private third-party employer, and thus is not seeking alternate state employment or advancement or transfer in the ordinary course of state employment; 2) he himself is not presenting his resume to his former agency directly for approval as an instructor, but rather, the conduit is a third-party private employer, which has already received approval for the curriculum it is utilizing. Thus, the first distinguishing factor would seem to disfavor applying the analysis in 2009-16 to this Petitioner’s set of facts, while the second factor would seemingly favor it. Considering all of the representations made by the Petitioner, pertinent provisions of the Code and prior advisory opinions, most particularly Advisory Opinion 98-111, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from accepting part-time employment as an instructor with RIAR. However, the Petitioner is encouraged to seek further guidance from this Commission if and when he has occasion to have dealings with DBR or REC beyond those outlined in this advisory opinion, within the one year period following his severance from state service. Code Citations : § 36-14-2(7) § 36-14-2(12) § 36-14-2(13) § 36-14-5(e) Commission Regulation 36-14-5006 Commission Regulation 36-14-5016 Related Advisory Opinions : A.O. 2009-16 A.O. 2008-62 A.O. 2008-6 A.O. 2007-44 A.O. 2007-35 A.O. 2006-42 A.O. 2003-43 A.O. 98-111 Keywords : Revolving Door