Advisory Opinion No. 96-85

Re: Barbara A. VonVillas, Ph.D.

A. QUESTION PRESENTED

The Petitioner, former elected member of the Middletown Scool Committee requests an advisory opinion as to whether, given the probability that the Superintendency in Middletown will become vacant on July 1, 1997 and the Petitioner's resignation from the School Committee took effect on June 28, 1996, (1) she may be appointed to the position assuming it's more than one year from her severance with the School Committee; (2) she may apply for the position prior to the end of one the one year prohibition; (3) she amy interview for the position prior to the end of the one year prohibition; (4) whether interviewing with the school committee acting as the inetrview/search committee constitutes appearing before the School Committee; (5) whether interviewing before a Search Committee that included some member of the School Committee constitutes appearing before the School Committee; and (6) whether interviewing before a Search Committee that did not include members of the School Committee constitutes appearing before the School Committee.

B. SUMMARY

Given the provisions of the Code, particularly Commission Regulation 5006, we conclude that the Petitioner, former Middletown School Committee member, an elected official, may not apply for or interview for the Middletown Superintendent position prior to June 29, 1997, one year from the effective date of her resignation from the Middletown School Committee. This does not preclude the Petitioner from seeking a position appointed by the Middletown School Committee after that date. Additionally, the fact that the School Committee may appoint another committee to conduct the search for a Superintendent, does not take the application process out of the realm of the School Committee since the new committee would be operating under the auspices or direction of the School Committee and is effectively a mere substitute for the School Committee itself. Therefore, we conclude that the Petitioner cannot pursue employment with any search committee created by the Middletown School Committee before the expiration of one year from her resignation from the School Committee since applying for and interviewing with either the School Committee or its substitute constitutes representing herself before her own Board.

C. DISCUSSION

1. Facts

The Petitioner is a former member of the Middletown School Committee. She resigned from the Committee effective June 28, 1996. The Petitioner is employed as a Assistant Superintendent in a Massachusetts district.

The Petitioner advises that an opening may occur in the Superintendency in Middletown on July 1, 1997. She requests an advisory opinion as to whether she may apply, interview for, or be appointed to that position given various time frames and the possibility that the School Committee could appoint a committee to administer the search process.

2. Analysis

The Code of Ethics provides that the Petitioner should not represent herself before any state or municipal agency of which she is a member or by which she is employed. In cases of hardship the Ethics Commission may permit such representation upon application by the official and provided that she shall R.I. Gen. Laws § 36-14-5(e)(1). Section 5(e)(4) extends this prohibition for a period of one year after the Petitioner has officially severed her position with the agency. Commission Regulation 36-14-5006 provides that no elected or appointed official may accept any appointment or election by the body of which she is a member, to any position which carries with it any financial benefit or remuneration, until the expiration of one (1) year after termination of her membership on such body, unless the Ethics Commission shall give its approval for such appointment, and further provided that such approval shall not be granted unless the Ethics Commission is satisfied that denial of such employment or position would create a substantial hardship for the body, board, or municipality.

While the Commission has previously advised public officials about this Code provision, it has not answered the questions presented by the Petitioner. Therefore, one must look to the intent of the Code. The Petitioner questions what actions are prohibited before the expiration of one year. R.I. Gen. Laws § 36-14-5(e)(1) provides that the Petitioner shall not represent herself before the School Committee. Representation could include submitting application materials or interviewing for a position. Commission Regulation 5006 provides that "the [Petitioner] shall not accept appointment..." However, this provision should not be read in conflict with Section 5(e), so as to allow a public official to seek a position, interview for it, etc. before the expiration of one year. This "revolving door" language is provided so as to minimize any influence the public official may have in obtaining subsequent public employment. That purpose would not be accomplished by allowing former public officials to use whatever influence they have during the year so that their appointment would not take affect until one year after their severance.

Similarly, if the School Committee forms a search committee, with or without members of the Search Committee, that Committee is still under the auspices of, if not the control of, the School Committee who will eventually select the Superintendent.

Given the provisions of the Code, we conclude that the Petitioner may not apply for or interview for the Middletown Superintendent position prior to June 29, 1997, one year from the effective date of her resignation from the Middletown School Committee. This does not preclude the Petitioner from seeking a position appointed by the Middletown School Committee after that date. Additionally, the fact that the School Committee may appoint another committee to conduct the search for a Superintendent, does not take the application process out of the realm of the School Committee since the new committee would be operating under the auspices or direction of the School Committee and is effectively a mere substitute for the School Committee itself. Therefore, we conclude that the Petitioner cannot pursue employment with any search committee created by the School Committee before the expiration of one year from her resignation from the School Committee since applying for and interviewing with either the School Committee or its substitute constitutes representing herself before her own Board.

Code Citations:

36-14-5(e)(1)

36-14-5(e)(4)

36-14-5006

Keywords:

revolving door