Advisory Opinion No. 2010-23 Rhode Island Ethics Commission Advisory Opinion No. 2010-23 Re: Robert S. Crausman, MD MMS QUESTION PRESENTED The Petitioner, former Chief Administrative Officer of the Rhode Island Board of Medical Licensure and Discipline for the Department of Health, a state employee position, who is currently employed as the Chief Medical Officer for Landmark Medical Center, requests an advisory opinion as to whether he is prohibited by the Code of Ethics from reporting information to, as may be required by state statute or regulation, and from making informational inquiries to his former agency, the Department of Health. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, former Chief Administrative Officer of the Rhode Island Board of Medical Licensure and Discipline for the Department of Health, a state employee position, who is currently employed as the Chief Medical Officer for Landmark Medical Center, is not prohibited by the Code of Ethics from reporting information to, as may be required by state statute or regulation, or from making informational inquiries to the Department of Health, since he will not be “representing” himself or another before his former agency, as that term is defined by R.I. Gen. Laws § 36-14-2(12) and 2(13) and Commission Regulation 36-14-5016. Until March of 2010, the Petitioner served as the Chief Administrative Officer of the Rhode Island Board of Medical Licensure and Discipline at the Department of Health (“DOH”). He also served as Director of the Center of Infectious Diseases and Epidemiology at DOH, and on an as needed basis as physician consultant to the Office of Facilities Regulation and Center for Emergency Preparedness, also within DOH. The Petitioner is currently employed as the Chief Medical Officer (“CMO”) for Landmark Medical Center (“Landmark”), a DOH licensed, non-profit health facility. The Petitioner represents that he understands that he is specifically prohibited, pursuant to R.I. Gen. Laws § 36-14-5(e)(1) and (e)(4), from representing himself or his employer before DOH for a period of one year from the date that he severed his employment with DOH, but seeks guidance from the Commission as to whether he is permitted by the Code of Ethics to interact with DOH regarding: (1) informational questions of interpretation concerning DOH regulations; (2) informational questions of physician or facility licensure; (3) reporting to DOH regarding reportable events, actions or incidents; (4) reporting of required information for the treatment for an impaired physician to the Physician’s Health Committee; (5) reporting and treatment of reportable illnesses and communicable diseases; and (6) hospital emergency preparedness for drills and actual events. The Petitioner expressly represented to Commission Staff that his interactions with DOH would not require him to present evidence or arguments before his former agency for the purpose of influencing any decision in either his or Landmark’s favor. 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.” Id. The Commission has issued numerous advisory opinions interpreting section 5(e)(4)’s requirements as they relate to former state employees interacting with their former agency within one year from the date of severance of their employment with the state. 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 an assisted living facility, 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 purposes 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). Notwithstanding the above, the circumstances surrounding this Petitioner’s request do not appear to be wholly ministerial in nature. As such, the Commission must determine whether the Petitioner’s interactions with DOH constitute representing himself or another before his former agency as that term is defined by the previously discussed sections of the Code of Ethics. Here, the Petitioner represents that his interaction with DOH will be for the purpose of acquiring information from DOH to assist him in interpreting regulations as applicable to Landmark or for statutory or regulatory reporting purposes. The Commission finds that the Petitioner’s interaction with DOH, as described herein, while serving as CMO for Landmark, does not constitute “representing” himself or another before his former agency as that term is defined by the Code, but rather, such interaction is primarily for the exchange of information. First, in his capacity as CMO for Landmark, the Petitioner represents that he is subject to the reporting requirements by state statute and DOH regulations. Second, the Petitioner represents that he will, at times, require the assistance from DOH regarding questions of interpretation of DOH regulations. He affirmatively represents that he will not be interacting with DOH for the purpose of influencing any decision by that agency, but rather, his contact will be for informational inquiries and reporting purposes only. Accordingly, it is the opinion of the Commission that the Petitioner is not prohibited by the Code of Ethics from reporting to, as required by state statute or regulation, or making informational inquiries to the Department of Health, as he specifically represents herein, since he will not be “representing” himself or another before his former agency, as that term is defined by R.I. Gen. Laws § 36-14-2(12) and 2(13) and Commission Regulation 36-14-5016. Code Citations: § 36-14-2(7) § 36-14-2(12) § 36-14-2(13) § 36-14-5(e) Commission Regulation 36-14-5016 Related Advisory Opinions: A.O. 2009-24 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: Post Employment Revolving Door