Advisory Opinion No. 2010-49 Rhode Island Ethics Commission Advisory Opinion No. 2010-49 Re: Daniel W. Majcher, Esq. QUESTION PRESENTED The Petitioner, Deputy Executive Counsel to the Office of the Governor, a state employee position, requests an advisory opinion regarding whether, given his current position, the Code of Ethics prohibits him from seeking or accepting state employment in another department. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Deputy Executive Counsel to the Office of the Governor, a state employee position, is not prohibited by the Code of Ethics from seeking or accepting state employment in another department, notwithstanding his current employment. The Petitioner is the Deputy Executive Counsel to the Office of the Governor. He represents that he has been employed by the State of Rhode Island since September 6, 2005, when he began work as Supervisor of Fiscal Services for the Department of Administration ("DOA"). The Petitioner states that in September 2007 he transferred into another position at the DOA as Assistant Director of Special Projects. According to the Petitioner, in March 2008 he was transferred by the Director of Administration pursuant to R.I. Gen. Laws § 36-4-34.1[1]to the Office of the Governor, where he maintained the same classification and pay grade but reported to the Governor's Executive Counsel. On July 1, 2008, the Petitioner was officially transferred to the Office of the Governor's Executive Counsel and became Deputy Executive Counsel. The Petitioner notes that at the time of this transfer, he requested and was granted what is known as "leave to protect status" pursuant to the State Personnel Regulations.[2] This status, according the Petitioner, allows an employee such as the Petitioner who has been transferred to another position the ability to return to his or prior position within a certain period of time. The Petitioner informs that his leave to protect status has been properly extended through the current fiscal year so that the Personnel Rules would allow him, if he wished, to return to his previous position at DOA. He states that he is also considering applying for other positions in state government. Under the Code of Ethics, a person holding, “a senior policy-making, discretionary, or confidential position on the staff of any state elected official or the general assembly,” is prohibited from seeking or accepting 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)(1). However, this revolving door prohibition contains the following exception: Notwithstanding the foregoing, a person holding [such] a 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. R.I. Gen. Laws § 36-14-5(o)(2). Given this provision of the Code of Ethics, the Petitioner asks two questions. First, he asks whether returning to a position in which an individual has "leave to protect status" constitutes "seek[ing] or accept[ing] other employment," as prohibited by section 5(o). Secondly, and assuming that section 5(o) does apply, he asks whether his continuous state service since September 6, 2005 satisfies the requirements of section 5(o)(2)'s exemption for those with five (5) years of uninterrupted state employment. Since we answer the second question in the affirmative, it is unnecessary for us to address any issues surrounding the Petitioner's leave to protect status. The Commission has issued prior advisory opinions that address the section 5(o) revolving door prohibition, as well as its exception for those with five (5) years of uninterrupted state service. Recently, in A.O. 2009-16, we opined that the Governor's Chief of Staff was not prohibited by section 5(o) from seeking or accepting appointment to the judiciary given his many years of uninterrupted state employment, including more than eight years of state employment before moving into the Office of the Governor. See also A.O. 2003-50 (Senior Policy Analyst in the Senate Policy Office of the Rhode Island General Assembly would qualify for exemption from section 5(o)'s revolving door, given his over five (5) years of uninterrupted state service). It is the opinion of this Commission that the nature of the Petitioner’s current position as Deputy Executive Counsel to the Office of the Governor makes him subject to the prohibition of section 5(o)(1). He is clearly both a discretionary and confidential member of the Governor's staff. However, the Petitioner’s continuous state employment since September 6, 2005, places him squarely within the exception for those with "five (5) years of uninterrupted service" found at R.I. Gen. Laws 36-14-5(o)(2). Accordingly, section 5(o) is not a bar to his return to his prior position at the Department of Administration, nor to his ability to seek or accept employment at any other state agency. This opinion only addresses the application of the Code of Ethics to the Petitioner's question. We offer no opinion as to the applicability of any other statutes or regulations, rules, policies or procedures that may also regulate the Petitioner's ability to seek or obtain employment with the state. Code Citations: 36-14-5(o) Other Law Cited: R.I. Gen. Laws § 36-4-34.1 Related Advisory Opinions: A.O. 2009-16 A.O. 2003-50 Keywords: Public Employment Revolving Door [1] Entitled, "Transfer of state employees," this statute reads: "The director of the department of administration is hereby authorized to transfer any employee within the executive branch who is not covered by a collective bargaining unit as provided in chapter 11 of this title. Any employee may be transferred to a comparable position upon the approval of the director of the department of administration and the personnel administrator. The transfers may be initially authorized for a period up to one year's duration and may be further extended with the approval of the personnel administrator." R.I. Gen. Laws § 36-4-34.1. [2] According to the Petitioner, he obtained "leave to protect status" pursuant to Rule 5.0661(c) of the State Personnel Rules, which provides: "An employee with permanent, provisional or probationary status is appointed to a higher class of position for which no valid list exists or that is categorized as non-competitive shall request a leave in order to protect his/her status in the lower class. The Appointing Authority shall recommend approval in writing to the Personnel Administrator, and the Personnel Administrator shall approve the request. Extensions of such leaves to protect status shall be granted until such time as a valid list is established for the class of position. Upon establishment of a valid list, the employee must either qualify for permanent appointment in the class or return to the position from which the leave was granted. Every employee is entitled to only one leave in each status -- permanent, provisional or probational at any given period."