Advisory Opinion No. 2010-53 Rhode Island Ethics Commission Advisory Opinion No. 2010-53 Re: Frederick J. Sneesby QUESTION PRESENTED The Petitioner, a communications and policy analyst in the Office of the Governor, a state employee position, requests an advisory opinion concerning whether the Code of Ethics prohibits him from seeking or accepting other state employment. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a communications and policy analyst in the Office of the Governor, a state employee position, is not prohibited by the Code of Ethics from seeking or accepting other state employment. The Petitioner states that since 2007 he has been employed in the Office of the Governor as an "Executive Assistant," working in the Office of Media Relations and Communications as a communications and policy analyst. The Petitioner states that his duties include: (1) researching and preparing background information for the Governor's staff on issues and initiatives such as tax reform, immigration, energy affordability, municipal consolidation, balancing the state budget, health and wellness, and the green economy, with a particular focus on how the office might communicate such initiatives to the public; (2) drafting speeches, press releases, op-ed pieces, and communications for distribution to the public and to public officials; and (3) serving as a liaison from the Office of Media Relations and Communications to commissions and workgroups within the Governor's Office, such as the Tax Policy Workgroup and the Municipal Fiscal Stress Task Force, in order to help release information to the public. The Petitioner represents that he does not report directly to the Governor. Rather, his supervisors are the Governor's Press Secretary and the Governor's Director of Communications (these two positions have been held by one person since February 2010), who are members of the Governor's "Senior Staff." The Petitioner states that he is not a member of the Senior Staff and that he does not take part in meetings between such staff and the Governor. The Petitioner notes that the current Governor's term of office expires in less than two months, likely triggering the turnover of most positions in the Office of the Governor. Given all of the above representations, the Petitioner asks whether he is permitted to seek and obtain employment in any other state agency upon the termination of his current employment. The Petitioner notes that, if permitted, he would seek any such employment through the normal application process required of all applicants for a state employee position. Under the Code of Ethics, 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)(1). This prohibition does not apply to a person having a minimum of five (5) years of uninterrupted state service, nor does it prevent a person from seeking or holding elective office, nor from seeking and obtaining employment in another senior policy-making, discretionary, or confidential position on any other General Officer's or the General Assembly's staff. Section 36-14-5(o)(2) & (3). Furthermore, the Ethics Commission may authorize exceptions to this prohibition "where such exemption would not create an appearance of impropriety." Section 36-14-5(o)(5). The relevant question for the Commission’s determination is whether the Petitioner's current employment amounts to a senior policy-making, discretionary, or confidential position on the staff of the Governor. If so, then section 36-14-5(o) prohibits him from seeking or accepting most other state employment for a period of one year after he leaves his current position. If not, then section 36-14-5(o) does not apply and he is free to seek any other state employment. The Commission considered a similar question in Advisory Opinion 2003-50. There, the Commission opined that a Senior Policy Analyst in the Rhode Island General Assembly’s Senate Policy Office was not in a senior policy-making, discretionary, or confidential position and, therefore, was not prohibited by section 36-14-5(o) from accepting other state employment. Although the Senior Policy Analyst's duties including discussing policy positions and potential legislation with Senators and Senate leadership, he represented that he was not a senior staff member of the Senate and that he did not manage personnel or budgets. Rather, he stated that he served as an analyst and researcher who provided factual information, evidence and analysis to Senators and the Senate leadership’s senior staff, who ultimately made all policy decisions. Furthermore, he reported to and was supervised by the Director of the Senate Policy Office, who is the person who works directly with the Senate leadership and attends the Senate's senior staff meetings. The Commission found that these represented duties and responsibilities did not bear the indicia of a senior policy-making, confidential or discretionary position on an elected official's staff. Compare A.O. 2010-49 (Governor's Deputy Executive Counsel is a senior policy-making, discretionary, or confidential position); A.O. 2009-16 (Governor's Chief of Staff serves in a senior policy-making, discretionary, or confidential position). Here, as in Advisory Opinion 2003-50, the Petitioner's duties and responsibilities do not bear the indicia of a senior policy-making, confidential or discretionary position on an elected official's staff. The Petitioner is not considered to be a member of the Governor's Senior Staff and he does not attend meetings between the Governor and such staff. It is the Petitioner's supervisor, the Press Secretary/Director of Communication, who is considered to be a member of Senior Staff, reporting directly to and attending meetings with the Governor. Accordingly, the Petitioner's representations lead us to conclude that he does not hold a "senior policy-making, discretionary, or confidential position on the staff of [a] state elected official[,]" and, therefore, the revolving door provision of section 36-14-5(o) does not apply. The Petitioner is free to seek and accept other state employment. Code Citations: 36-14-5(o) Related Advisory Opinions: A.O. 2010-49 A.O. 2009-16 A.O. 2003-50 Keywords: Public Employment Revolving Door