Advisory Opinion No. 95-58

Re: William A. DiLibero, Esq.

A. QUESTION PRESENTED

Former Legal Counsel for the Rhode Island Department of Environmental Management requests an advisory opinion as to whether (a) he would violate the Code of Ethics were he to appear before the Rhode Island Department of Environmental Management within one year of his termination from said agency, and (b) if such appearances were deemed a violation of the Code, petitioner requests that the Commission grant him an exception based on hardship.

B. SUMMARY

The Commission finds that the former Legal Counsel for the Rhode Island Department of Environmental Management would not be in violation of the Code of Ethics were he to appear before said agency within one year of leaving state service given the particular circumstances of his brief tenure at and termination from said agency. The Commission concludes that applying the one year prohibition to the former Legal Counsel does not reflect the spirit of the law given the following circumstances: (a) petitioner served for the brief period of 6 months, (b) the term of his employment completely overlapped with his probationary period, and (c) petitioner was terminated from his position. Given these circumstances, we have reason to doubt that Mr. DiLibero will be able to yield the type of influence which would give him an unfair advantage were he to be allowed to appear before the agency by which he was employed within one year of being terminated from state service.

C. DISCUSSION

1. Facts

William A. DiLibero served in the position of Legal Counsel I at the Rhode Island Department of Environmental Management (RIDEM) from November 27, 1994 to May 31, 1995. The petitioner advises that on May 31, 1995, his supervisor Catherine Robinson Hall and Division Chief Kendra Beaver recommended against his continued employment with RIDEM as Legal Counsel I. Mr. DiLibero advises that since that date he has neither sought employment as an environmental attorney nor has he resumed the practice he left to assume the position in Rhode Island state government.

Mr. DiLibero presents a two-part advisory opinion request. First, he asks whether prohibitions governing former employees appearing before the agencies by which they are employed pursuant to R.I. Gen. Laws § 36-14-5(e) (4) should apply to him given the following circumstances:

(a) he represented RIDEM for a brief time period--6 months;

(b) he was dismissed by RIDEM;

(c) he has a great deal of work experience in the environmental field in Massachusetts and other states as compared with only 6 months at RIDEM; and

(d) his representation on behalf of the Division of Groundwater and ISDS at RIDEM was limited--involving, for the most part, enforcement matters appearing before RIDEM's Administrative Adjudicative Hearing Officers.

If the Commission finds that Mr. DiLibero should be restricted in his post-employment activities pursuant to R.I. Gen. Laws § 36-14-5(e) 4, he requests relief due to the considerable hardship that said prohibition would create for himself and his family. Specifically, petitioner advises that a one-year prohibition on representations of public and private clients before RIDEM would require his working out-of-state or practicing law outside of his field of expertise given that most environmental practice within Rhode Island requires interaction with RIDEM. Additionally, Mr. DiLibero advises that the matters which he would represent before RIDEM are comparable to matters of public record in a court of law.

The petitioner advises that the bachelors of science and two graduate degrees he holds are all geared towards environmental science and policy. Prior to his assuming the position at RIDEM, petitioner was employed by the Massachusetts Department of Environmental Protection (DEP) from November 1988 to November 1994 where he held the positions of Environmental Planner IV (prior to receiving his law degree in 1991) for 3 years and of Deputy Director for 9 months, as well as an eighteen month stint as Administrator of the DEP's Resource Mapping (GIS) Program. The petitioner also advises that prior to his six years with DEP, he represented local and county governments for ten years as an Environmental Planner. In addition, the petitioner advises that during his six months at RIDEM, he represented the Division of Groundwater and ISDS concerning enforcement matters appearing, for the most part, before RIDEM's Administrative Adjudicative Hearing Officers.

Finally, Mr. DiLibero advises that he was recruited from a secure position in Massachusetts by RIDEM, and that RIDEM was aware of his having a serious physical disability. Petitioner contends that the "tenuous nature of his 'employment'" was reflected by the statement made by his supervisor at the time of his dismissal that "the Department had made the decision not to hire."

2. Analysis

This advisory opinion request raises the issue as to whether a brief period of employment and the nature of said employment would preclude a public employee from violating the Code of Ethics were he to represent public and private clients before his former employer within one year after leaving state employment pursuant to R.I. Gen. Laws § 36-14-5(e) (2) and (4). In addition, this advisory opinion raises the issue of what constitutes a hardship that might trigger the exception included in R.I. Gen. Laws § 36-14-5(e) (1).

In Mr. DiLibero's advisory opinion request, he advises that (a) given his brief term of employment with RIDEM--a six month period, and the limited nature of his day to day responsibilities, his representation of public and private clients before his former employer would not constitute a conflict of interest; and that (b) in the event a conflict of interest were to be found, the facts represented in this particular case warrant the Ethics Commission's granting him an exception to the prohibition against appearing before one's former employer within one year after leaving employment.

Mr. DiLibero cites two advisory opinions which he finds to be comparable to his present situation. However, in citing Advisory Opinion 94-13, he misinterprets Commission findings when he writes that leniency was extended to the petitioner in that matter, allowing him to appear before his former employer, the Secretary of State, before the end of the one-year of leaving his official position. Rather, the Commission only allowed the petitioner in that matter to appear before his former employer in representations which "requir[e] only ministerial acts, duties, or functions involving neither adversarial hearings nor the authority of the Office of the Secretary of State to exercise discretion or render decisions." Advisory Opinion 94-13. This exception for matters of pubic record in a court of law is reflected in R.I. Gen. Laws § 36-14-5(e)(4).

The petitioner also cites Advisory Opinion 91-94 in which this Commission allowed an attorney employed by the Department of Labor to appear before its Administrative Court immediately upon leaving employment with that state agency in light of the fact that an appearance before the Administrative Court is comparable to an appearance in connection with matters of public record in courts of law. Mr. DiLibero advises that his appearances before RIDEM would be of this nature.

The Ethics Commission has consistently upheld the one year prohibition against representing oneself or others before an agency by which one was employed. Advisory Opinions 84-13, 87-5, 90-32, 92-13, 92-44. In Advisory Opinion 92-44, the Commission notes that R.I. Gen. Laws § 36-14-5(e) (2), the prohibition against representing others before the board or agency with which one was formerly associated, includes no exceptions for hardship. However, this Commission finds that the one year prohibition is unwarranted in light of the distinguishing facts presented in Mr. DiLibero's case.

Thus, it is the opinion of this Commission that Mr. DiLibero will not be in violation of the Code of Ethics in the event that he appears before the RIDEM within one year of leaving state service given the particular circumstances of his brief tenure at and termination from said agency. The Commission concludes that applying the one year prohibition to Mr. DiLibero does not reflect the spirit of the law in light of the following circumstances: (a) petitioner served for the brief period of 6 months, (b) the term of his employment completely overlapped with his probationary period, and (c) petitioner was terminated from his position. Given these circumstances, we have reason to doubt that Mr. DiLibero will be able to yield the type of influence which would give him an unfair advantage were he to be allowed to appear before RIDEM within one year of being terminated from public employment. Therefore, the Commission finds that the one year prohibition does not attach in this instance. In light of that finding, it is unnecessary to address the issue of hardship.

Keywords

Acting as Agent

Post-Employment