Advisory Opinion No. 97-117

Re: Michael E. Embury

A. OUESTION PRESENTED

The Petitioner, the Town Administrator for the Town of Middletown, Rhode Island, has requested an advisory opinion as to whether Arlene Kaull, a former Town Councilperson (whose term ended in late November, 1996), may accept the Town Council's appointment of her to serve as the Director of the Middletown Senior Center (the "Director") during the one-year period after her term as Councilperson ended, if Ms. Kaull agrees to serve as the Director as an unpaid volunteer.

B. SUMMARY

Given the provision of the Code of Ethics, particularly R.I. Gen. Laws §§ 36-14-5(e)(1) and 5(e)(4) and Commission Regulation 5006, the Commission concludes that Arlene Kaull, former Town Councilperson to the Town of Middletown, may accept appointment as Director by the Middletown Town Council and may serve in the position as the Director prior to the expiration of the one-year waiting period if Ms. Kaull agrees to serve as the Director as an unpaid volunteer. However, Ms. Kaull may not circumvent the Code of Ethics by assuming the Director position and serving as a volunteer only for the period of one year after her term in office ended and then accepting financial and other benefits as compensation for her work as Director as soon as the one-year period ends.

C. DISCUSSION

1. Facts

The Middletown Town Council appoints the Director of the Middletown Senior Center and the five member Board of Directors to the Senior Center for one-year terms. The position of Director is a full-time contract position with annual compensation of $18,700, health benefits and a pension. The Director manages the Senior Center under the Direction of the Town Administrator and the five-member Board of Directors.

Ms. Kaull served on the Middletown Town Council until the end of November, 1996. On or about July 1, 1997, Michael Embury, the Town Administrator for the Town of Middletown, requested an advisory opinion as to whether Ms. Kaull could accept the Town Council's appointment as the Director and whether she could serve as the Director 1) if less than one year had passed since she served on the Town Council and 2) if she served as the Director as an unpaid volunteer.

On June 30, 1997, a Complaint was filed by Ronald Santa against George Andrade, President of the Town Council. The Complaint alleged, inter alia that the Town Council had promised to appoint Ms. Kaull as Director. The Complaint further alleged that, although Ms. Kaull would accept the position as an unpaid volunteer, she intended to accept the regular compensation and benefits of the office of Director as soon as the one-year "revolving door" period had passed. Based on the Complaint, a preliminary investigation was conducted.

2. Analysis

The Code of Ethics provides that, for a period of one year after a person has officially terminated his or her position with any state or municipal agency, that person shall not appear before the state or municipal agency on which the person had served. R.I. Gen. Laws §§ 36-14-5(e)(1) and 5(e)(4). In addition, Commission Regulation 36-14-5006 provides that "[n]o elected or appointed official may accept any appointment or election by the body of which he or she is or was a member, to any position which carries with it any financial benefit or remuneration, until the expiration of one (1) year after termination of his or her membership in or on such body, unless the Ethics Commission shall give its approval of such appointment." Regulation 5006 further provides that the Ethics Commission shall not grant such approval unless it "is satisfied that denial of such employment or position would create a substantial hardship for the body, board, or municipality."

In Advisory Opinion 96-85, the Ethics Commission determined that R.I. Gen. Laws § 36-14-5(e)(1) and Regulation 5006 prohibited a former member of the Middletown School Committee from applying or interviewing for or from being appointed to the position of Superintendent of the Middletown Schools during the one-year period after her resignation from the Middletown School Committee. In that case, the former School Committee member wished to apply to and be interviewed by a sub-committee of the School Committee on which she had served within one year of the date of her resignation from the School Committee. The Ethics Commission determined that the intent of R.I. Gen. Laws § 36-14-5(e)(1), of Regulation 5006, and of the "revolving door" language in the Code "would not be accomplished by allowing former public officials to use whatever influence they have during the [one] year [revolving door period] so that their appointment would not take affect until one year after their severance."

In Advisory Opinion 97-27, the Ethics Commission provided that the Rhode Island Senate Committee on Corporations would not violate the Code of Ethics if it utilized the services of a former member of the Senate within one year after the Senator's term ended provided that the Senator agreed to waive the per diem compensation and any other benefits which would accrue to the position of committee clerk until at least one year had passed from the date of the Senator's resignation from the Senate. The Ethics Commission based its opinion on the fact that the former Senator would serve "at will" and at the whim of the Senate Committee on Corporations in the position of committee clerk and would not accept any financial benefit or other remuneration within one year of his resignation,

This case is more similar to Advisory Opinion 96-85 than to Advisory Opinion 97-27 because the Director position involves a contract for a specified term with annual compensation of $18,700 and other benefits. Neither Ms. Kaull nor the Town can circumvent the language or the intent of R.I. Gen. Laws § 36-14-5(e)(1) and Regulation 5006 by appointing Ms. Kaull to serve without compensation only until the expiration of the one-year anniversary of the end of her term on the Town Council and then starting to pay her an annual salary and to provide her with the health benefits and pension as soon as the one-year employment prohibition has expired.

Code Citations:

36-14-5(e)(1)

36-14-5(e)(4)

Related Advisory Opinions:

97-27

96-85

Keywords:

Revolving Door