Advisory Opinion No. 96-102

Re: Patricia A. Tripodi

A. QUESTION PRESENTED

The petitioner, a former Narragansett Bay Commission employee who left her employment with the Commission within the past year, requests an advisory opinion as to whether any impermissible conflicts will occur during the year after her employment terminated due to her current private employment with an engineering company that has clients that are regulated by the Narragansett Bay Commission.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a former Narragansett Bay Commission employee, is not prohibited by Code of Ethics "revolving door" provisions from doing work for clients that then is submitted to the Narragansett Bay Commission; the work allowed under the Code may include routine follow-ups to these submissions. However, the petitioner may not have any personal involvement with a matter before the Narragansett Bay Commission ("NBC") that goes beyond ministerial activities such as hand delivering documents to or reviewing files at the NBC so as to constitute "representing another person" nor serve as an expert witness before the NBC prior to the expiration of one year from the date of her official severance. R.I. Gen. Laws § 36-14-5(e). Additionally, the petitioner may not use any confidential information she obtained while working at the Narragansett Bay Commission for financial gain. R.I. Gen. Laws § 36-14-5(b), (c), (d).

C. DISCUSSION

1. Facts

The petitioner was employed by the Narragansett Bay Commission as an Industrial Wastewater Control Technician in the Industrial Pretreatment Section for 11 years. The petitioner reported to several levels of authority above her; her supervisors would ultimately review and approve any reports or permits that were to be issued.

The petitioner is now employed by a private engineering company. In her current employment, the petitioner will perform consulting engineering and environmental audits under the direction of senior staff. Some of her employer's clients are regulated by the Narragansett Bay Commission. The petitioner may be asked, as part of her employment, to prepare plans or other engineering work that would be submitted to the Narragansett Bay Commission. The petitioner avers that she will not participate in work that she had personal knowledge of as a Narragansett Bay employee. The petitioner further states that her employer's current clients are primarily in the plating and electroplating industry and that she personally did not regulate this industry while at the Narragansett Bay Commission.

The petitioner requests an advisory opinion as to potential conflicts given her current private employment and previous public employment in the same field.

2. Analysis

The Code of Ethics provides that the petitioner should not represent herself or any other person before any state or municipal agency of which she is a member or by which she is employed. R.I. Gen. Laws § 36-14-5(e)(1) & (2). Additionally, R.I. Gen. Laws § 36-14-5(e)(3) provides that the petitioner cannot act as an expert witness before her agency with respect to any matter the agency's disposition of which will or can reasonably be expected to directly result in an economic benefit or detriment to her or any business by which the person is employed or which the person represents. Section 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner has officially severed her position with the agency. This "revolving door" language is provided so as to minimize any influence the former public official may have in a consideration by her former agency that is not available to the general public. Also, Sections 36-14-5(b), (c) and (d), of the R.I. Gen. Laws, prohibit the use or disclosure of confidential information acquired by an official or employee during the course of or by reason of his or her official employment, particularly for the purpose of obtaining financial gain.

The Commission has previously concluded that public officials cannot appear before their own agency or Board before the expiration of one year from their termination. In A.O. 96-11, the Commission concluded that a former Senior Budget Analyst may not represent himself, any other person or entity, or act as an expert witness before the State Budget Office for a period of one year after having officially severed his position with that office. See also A.O. 94-06 (concluding that a violation will result if a former Newport City Councilor were to appear before the Council as the Executive Director of the Newport Chamber of Commerce for a period of one year after the date of his termination from the city council); A.O. 90-32 (concluding that Lincoln Zoning Board of Review member could not represent clients before the Zoning Board of Review, the Planning Board, or the Town Council before expiration of one year from severing his position with the Board), and A.O. 89-2 (concluding that a DEM employee could accept private employment as a consultant, but could not represent himself, any other person, or act as a n expert witness before DEM for a period of one year after officially severing his position).

In contrast, the Commission has found that a former Legal Counsel for the Rhode Island Department of Environmental Management would not be in violation of the Code were he to appear before that agency within one year of leaving state service given the particular circumstances of his brief tenure at and termination from that agency. In that case, given that the legal counsel had only been employed at DEM for six months, essentially a probationary period, and had been fired, the Commission found that the intent of the statute did not apply to those particular circumstances since that official could not likely influence members of his former agency. A.O. 95-58. Additionally, the Commission has found that a former employee of a state or municipal agency will not risk a violation of R.I. Gen. Laws § 36-14-5(e)(4) if he represents the interests of his private employer before said agency if the representation a) would require the former employee to engage only in ministerial acts, duties, or functions; and b) the agency does not hold an adversarial hearing or exercise discretion to reach a decision as to the matter involving the former employee's representation. See A.O. 94-13 (concluding that former Deputy Legal Counsel and Acting Chief of Staff for the Office of the Secretary of State who voluntarily terminated his employment with the Office may not represent himself or any other person before the Office until one year after his official date of resignation for any matter other than a representation which would "requir[e] only ministerial acts, duties, or functions involving neither adversarial hearings nor the authority of the [agency] to exercise discretion or render decisions"). Additionally, in A.O. 96-59, the Rhode Island Ethics Commission found that the Code of Ethics, R.I. Gen. Laws § 36-14-5(e), will not prohibit a former employee of Rhode Island Housing and Mortgage Finance Corporation (RIHMFC) from working in the private sector as either a mortgage originator or a mortgage underwriter within a year of leaving state service given that the employee is not "representing" the interests of his private employer before RIHMFC, as the term is defined in R.I. Gen. Laws § 36-1-2(10), since the former employee's involvement would be ministerial in nature and RIHMFC's officials would use little or no discretion to review submitted loan applications.

It is the opinion of the Rhode Island Ethics Commission that based on the petitioner's representations, provisions of the Code, and previous advisory opinions, the Code of Ethics does not prohibit the petitioner from doing work for clients that then is submitted to the Narragansett Bay Commission; the work allowed under the Code may include follow-ups to these submissions. However, the petitioner may not have any personal involvement with a matter before the Narragansett Bay Commission that goes beyond ministerial activities such as hand delivering documents to or reviewing files at the NBC so as to constitute "representing another person" nor serve as an expert witness before the NBC before the expiration of one year from the date of her office severance from the NBC. Additionally, the petitioner may not use any confidential information she obtained while working at the Narragansett Bay Commission for financial gain.

Code Citations:

36-14-5(b)

36-14-5(c)

36-14-5(d)

36-14-5(e)

Related Advisory Opinions:

96-59

96-11

95-58

94-13

94-06

90-32

89-2

Keywords:

revolving door