Advisory Opinion No. 2010-54 Rhode Island Ethics Commission Advisory Opinion No. 2010-54 Re: The Honorable Steven M. Costantino QUESTION PRESENTED The Petitioner, a legislator serving in the Rhode Island House of Representatives, a state elected position, requests an advisory opinion regarding whether, upon the expiration of his term of office, he may accept an appointment by the Governor of Rhode Island to serve in the position of Secretary of Health and Human Services. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a legislator serving in the Rhode Island House of Representatives, a state elected position, may upon the expiration of his term of office, accept an appointment by the Governor of Rhode Island to serve in the position of Secretary of Health and Human Services. The Petitioner is a member of the Rhode Island House of Representatives, having been elected in 1994 and serving continuously since. For the past six years he has served as the Chairperson of the House Committee on Finance. The Petitioner did not seek to retain his seat in the most recent election and his term of office will therefore expire with the qualification of his successor in the first week of January 2011. The Petitioner represents that the Governor-elect has offered to appoint him to the position of Secretary of Health and Human Services ("Secretary of HHS"). The Secretary of HHS is a cabinet-level position appointed by and serving at the pleasure of the Governor, subject to the advice and consent of the Senate, and has responsibility for administering the Executive Office of Health and Human Services ("EOHHS"). R.I. Gen. Laws § 42-7.2-3. The EOHHS serves "as the principal agency of the executive branch of state government for managing the departments of children, youth and families, elderly affairs, health, human services, and mental health, retardation and hospitals." Section 42-7.2-2. Cognizant that the Rhode Island Code of Ethics contains certain "revolving door" provisions that apply to state elected officials generally, and to members of the General Assembly more specifically, the Petitioner requests guidance as to whether he is permitted to accept the Governor-elect's appointment. The Code of Ethics contains both statutory and regulatory revolving door provisions that are applicable to current and former members of the legislature. Section 36-14-5(n) of the Code of Ethics provides: No state elected official, while holding state office and for a period of one (1) year after leaving state office, shall seek or accept employment with any other state agency . . . other than employment which was held at the time of the official's election . . . except . . . [n]othing contained herein shall prohibit . . . any state elected official from seeking or accepting a senior policy-making, discretionary, or confidential position on any general officer's or the general assembly's staff, or from seeking or accepting appointment as a department director by the governor. R.I. Gen. Laws § 36-14-5(n)(1) and (2) (hereinafter, "section 5(n)"). Furthermore, section 5(n) clarifies that the Ethics Commission may authorize an exception to this revolving door prohibition "where such exemption would not create an appearance of impropriety." Id. In addition to the above statutory revolving door provision that is applicable generally to all state elected officials, the Code contains a more specific, regulatory prohibition that applies only to members of the General Assembly. Adopted in 1991 by the Ethics Commission, along with several other regulations aimed at strengthening the Code of Ethics, Regulation 36-14-5007 reads: No member of the General Assembly shall seek or accept state employment as an employee or consultant, not held at the time of the member's election, while serving in the General Assembly and for a period of one (1) year after leaving legislative office. Regulation 36-14-5007 (hereinafter, "Regulation 5007"). The Ethics Commission has previously applied both of these revolving door provisions to legislators. Most recently, in Advisory Opinion 2009-44 the Commission opined that section 5(n) and Regulation 5007 both prohibited a legislator from providing arbitration or mediation services to a state agency, although he could continue to be listed on the Department of Administration's master price agreement as qualified to provide such services to non-state entities. Similarly, in Advisory Opinion 2006-25, it was determined that Regulation 5007 would apply to prohibit a member of the House of Representatives from providing insurance brokerage services (a consulting relationship) to a quasi-public state agency. In Advisory Opinion 2001-6, the Commission opined that both section 5(n) and Regulation 5007 prohibited a member of the House of Representatives from accepting work as a part-time instructor at Rhode Island College. See also A.O. 93-53 (State Representative may continue to work as paid consultant for Department of Business Regulation, notwithstanding Regulation 5007, since such work pre-dated his election). The instant Petitioner presents one fact that did not exist in any of these prior advisories, namely, that the state employment under consideration stems from a gubernatorial appointment to a cabinet-level position as a department head. This circumstance fits neatly into section 5(n)'s exception for appointment by the Governor to a position as a department director. Section 36-14-5(n)(2). However, having determined that section 5(n) is not offended, we must also apply the Code's more specific revolving door provision for former legislators, Regulation 5007. Unlike its statutory counterpart, Regulation 5007 does not contain an exception for senior-level appointments, nor is there an express provision allowing the Commission to authorize an exception in particular instances. Accordingly, on the surface it would appear that Regulation 5007 would prohibit the Petitioner from accepting any state employment of any nature until the expiration of one (1) year after leaving legislative office. However, in the years since Regulation 5007's adoption there have been certain judicial interpretations of the Commission's revolving door provisions that apply to shape our construction and application of Regulation 5007 to the instant facts. In 1993, the Rhode Island Supreme Court issued a decision upholding the constitutionality of both Regulation 5007 and section 5(n). That case began when the Governor questioned whether the Code's revolving door provisions "unconstitutionally infringed upon the ability of the members of the executive, legislative, or judicial branches to perform their duties." In re Advisory from the Governor, 633 A.2d 664, 666 (R.I. 1993) (hereinafter, "1993 Advisory Opinion). In particular, the Governor argued that these provisions violated principles of due process, equal protection and separation of powers. The Commission not only defended the constitutionality of Regulation 5007, but it also questioned whether section 5(n)'s statutory exceptions were valid when applied to legislators in light of the fact that such exceptions were not included in Regulation 5007. Id. at 668. The Supreme Court held that both parties' arguments went too far, and instead opined that both section 5(n) and Regulation 5007 were constitutional, valid and separately enforceable. Id. at 669-673. The Court's 1993 Advisory Opinion stood undisturbed for several years until it was modified by another Supreme Court advisory opinion concerning the impact of an ethics regulation on a longstanding constitutional grant of appointment power. In 1999, the Supreme Court declared unconstitutional a Commission Regulation which attempted to limit the General Assembly's constitutional authority to appoint its own members to state boards, agencies and commissions.[1] In re Advisory Opinion to the Governor, 732 A.2d 55 (R.I. 1999) (hereinafter, "1999 Advisory Opinion"). Such a regulation was, Commission opponents argued, in direct contravention of the Rhode Island legislature's longstanding constitutional powers of appointment. The Court agreed, writing: [T]he commission may not act inconsistently with the constitution. "[T]he commission, like any other governmental body, is subject to many of the usual checks and balances associated with our tripartite form of government . . . ." The commission, for example, may not create regulations that seriously impinge upon the executive or the legislative branch's ability to perform their duties, or "assume powers that are central or essential to the operation of the Governor's office. . . ." 732 A.2d at 68-69 (quoting In re Advisory Opinion to the Governor, 612 A.2d 1, 18-19 (R.I. 1992); In re Advisory from the Governor, 633 A.2d 664, 675 (R.I. 1993)). In summary, the 1999 Advisory Opinion held that the Ethics Commission may not, by enacting ethics laws authorized generally by the Ethics Amendments of 1986, amend other parts of the Constitution by diminishing the express powers granted to any branch of government. Id. Then, in 2001, the Superior Court issued a decision that addressed, and in some ways reconciled, the holdings of the 1993 Advisory Opinion (the Code's revolving door provisions are constitutional) and the 1999 Advisory Opinion (the Code's provisions cannot be inconsistent with the Constitution's grant of appointment powers). The case of Inman v. Whitehouse, No. 01-1256, 2002 WL 169197 (R.I. Super. Jan. 17, 2002), began with a vacancy in the office of Rhode Island Secretary of State after James Langevin was elected to Congress in 2000. Pursuant to the Rhode Island Constitution, "in case of a vacancy in the office of the secretary of state, . . . the general assembly in grand committee shall elect someone to fill the same . . . ." R.I. Const. art. IV, sec. 4. Pursuant to that authority, the General Assembly met in Grand Committee and elected Edward S. Inman, III ("Inman"), a sitting member of the House of Representatives, to finish Langevin's term. Thereafter, complaints were filed with the Ethics Commission alleging that Inman violated the revolving door provisions of the Code of Ethics, including Regulation 5007. Inman brought an action in the Superior Court to stay proceedings before the Ethics Commission, and to obtain a declaration that, among other things, the Code's revolving door provisions cannot restrict the Grand Committee's constitutional authority to fill a vacancy in the office of Secretary of State. The Attorney General intervened and sought to have the case certified to the Supreme Court, however the Court denied the certification and instructed the Superior Court to hear the case and issue a decision. The case was heard before Justice Silverstein and, ultimately, the Ethics Commission joined with Inman and the Attorney General to agree that Regulation 5007, while valid, could not impinge upon the Grand Committee's constitutional authority to elect Inman to fill the vacancy. The Superior Court issued its written decision on January 17, 2002. Therein, the court first recognized the Ethics Commission's constitutional authority to enact substantive ethics laws. Inman, at *3. However, the court noted an "important distinction between the Commission's general constitutional power to enact ethics regulations and the General Assembly's specific constitutional power [under art. IX, sec. 4] to elect an individual to fill a vacant state office." Id. To allow the Commission to enact a regulation that limited the unambiguous constitutional appointment power of the General Assembly would, according to the court, violate principals of separation of powers discussed by the Supreme Court in the 1999 Advisory Opinion and be contrary to the Constitution's Supremacy Clause, art. VI, sec. 1, which declares: "This Constitution shall be the supreme law of the state, and any law inconsistent therewith shall be void." Id. (quoting R.I. Const. art. VI, sec. 1). The facts presented by this Petitioner in the instant request for an advisory opinion require careful consideration of the legal analyses set forth by the Supreme Court in the 1999 Advisory Opinion and applied by the Superior Court in Inman. As in Inman, the Petitioner's prospective position with the state comes via an appointment that is expressly authorized by the Rhode Island Constitution. The Governor's power to appoint executive branch officers, such as the Secretary of HHS, is expressly set forth in article IX of the Rhode Island Constitution, relating to the Executive Power: Powers of appointment. -- The governor shall, by and with the advice and consent of the senate, appoint all officers of the state whose appointment is not herein otherwise provided for and all members of any board, commission or other state or quasi-public entity which exercises executive power under the laws of this state; but the general assembly may by law vest the appointment of such inferior officers, as they deem proper, in the governor, or within their respective departments in the other general officers, the judiciary or in the heads of departments. R.I. Const. art. IX, sec. 5. In Inman, the Ethics Commission took the position that although Regulation 5007 was valid and constitutional when limiting a legislator from accepting general state employment or consulting work, it did not apply to restrict Inman from accepting a position that was offered to him through a constitutionally authorized procedure. Eight years later, our position has not changed. In the instant matter, the Governor's appointment of the Petitioner to the position of Secretary of HHS is expressly authorized in article IX, section 5, and it is not our prerogative to amend that constitutional provision through the enactment of a contrary regulation. For these reasons, it is the opinion of the Ethics Commission that while both section 5(n) and Regulation 5007 continue to be valid and enforceable revolving door prohibitions of the Code of Ethics, neither they nor any other provision of the Code of Ethics prohibits the Petitioner from accepting the Governor's appointment to the position of Secretary of HHS. Code Citations: R.I. Gen. Laws § 36-14-5(n) Regulation 36-14-5007 Other Constitutional and Statutory Authority: R.I. Const. art. III, sec. 7 and 8. R.I. Const. art. IV, sec. 4 R.I. Const. art. VI, sec. 1 R.I. Const. art. IX, sec. 5 R.I. Gen. Laws § 42-7.2-2 R.I. Gen. Laws § 42-7.2-3 Other Authority Cited: In re Advisory Opinion to the Governor, 732 A.2d 55 (R.I. 1999). In re Advisory from the Governor, 633 A.2d 664 (R.I. 1993). In re Advisory Opinion to the Governor, 612 A.2d 1 (R.I. 1992). Inman v. Whitehouse, No. 01-1256, 2002 WL 169197 (R.I. Super. Jan. 17, 2002). Related Advisory Opinions: A.O. 2009-44 A.O. 2006-25 A.O. 2001-6 A.O. 93-53 Keywords: Revolving door Prospective employment