Advisory Opinion No. 98-11

Re: Garrett Iannella

A. QUESTION PRESENTED

The Petitioner, a former Department of Environmental Management (DEM) employee, a state employee position, who worked in the Office of Program Development, requests an advisory opinion as whether the Code of Ethics requires any limitations on his post-employment contacts with the DEM.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former Department of Environmental Management (DEM) employee, a state employee position, should not appear before the Office of Program Development within the DEM for a period of one year from the date of his official severance with the DEM, or August 22, 1998 except as to ministerial activities such as submitting or retrieving information. See R.I. Gen. Laws § 36-14-5(e)(1) and (4). This does not bar other employees of Hetzel or its consultants from interacting with the DEM providing they do not have other conflicts under the Code of Ethics. Finally, the Petitioner may have contact with the Office of Customer and Technical Assistance prior to the one year separation since he did not work for that department and his contact with that department was more of a ministerial than a substantive nature. Finally, the Petitioner may not use any confidential information he obtained while working for the Office of Program Development for financial gain. R.I. Gen. Laws § 36-14-5(b), (c), (d).

C. DISCUSSION

1. Facts

The Petitioner is a former employee of the Office of Program Development within the Department of Environmental Management (DEM). While working in that Office, he worked on the electronics recycling project which sought to identify a company that would establish an electronics recycling operation in Rhode Island. Although the Petitioner was not a supervisor on the project, he worked directly under the recycling program's director. As part of the project, public bids were sought, with Hetzel Elektronik Recycling GmbH of Nuremberg, Germany (Hetzel Germany) the successful bidder. As represented by the Petitioner, the goal of the program is to establish an electronics recycling facility in Rhode Island and to make the DEM and the federal Environmental Protection Agency (EPA) aware of the operating problems such a facility may encounter, specifically within the parameters of state and federal environmental regulations.

The Petitioner took a leave of absence from the DEM in the spring of 1997, but did not officially resign from the DEM until August 22, 1997. He then accepted a position with Hetzel Elektronik Recycling - New England, Inc.,(Hetzel New England) a recently formed subsidiary of Hetzel Germany. Presently he is the subsidiary's only U.S. employee. As the recycling project with the DEM is not yet complete, nor is the facility operational, his new employer and its parent have remaining issues with the DEM.

The Petitioner asks whether there are limitations to his contact with the DEM, specifically, with the Office of Customer and Technical Assistance and with the Office of Program Development. Additionally, the Petitioner asks who may be the primary contact for Hetzel New England if the law does not allow him to fill that role and whether he may sign permit applications to be submitted to the DEM as Hetzel New England's president and general manager.

2. Analysis

The Code of Ethics provides that the Petitioner shall not represent himself or any other person before any state agency by which he is or was employed for a period of one year after he has officially severed his position with that agency. See R.I. Gen. Laws § 36-14-5(e)(1), (2), (4). Also, R.I. Gen. Laws § 36-14-5(c) states that a public official or employee may not disclose confidential information acquired by him by reason of his employment for pecuniary gain. Finally, a public official may not accept any reward or promise of future employment in return for or based on any understanding or expectation that his or her vote, official action or judgment would be influenced thereby. See R.I. Gen. Laws § 36-14-5(g).

The Petitioner represents that he was not contacted for employment by Hetzel Germany until he was on a leave of absence from the DEM. Additionally, the Commission does not have any evidence to suggest that he was offered the position based on any actions he took at the DEM regarding Hetzel Germany and the recycling project. See R.I. Gen. Laws § 36-14-5(g).

In past decisions, the Commission has held that the revolving door provisions of subsection 5(e)(2) may apply to either the entire agency by which an individual was employed or, more narrowly, to only the department within an agency that formerly employed the individual. Determining the breadth of the prohibition depends upon a variety of factors, including the size of the agency, the nature of working relationships of separate departments within the agency, and a particular individual's responsibilities within the agency.

Prior decisions also have allowed former employees to perform ministerial activities involving their agency such as submission of materials for approval, retrieving papers and routine follow-ups. See A.O. 97-1. In that opinion the Commission concluded that a DEM Engineer could not appear before the division in which he had been employed until one year from the termination of his employment, but could submit materials to that division including routine follow-ups to those submissions. Additionally, the Commission stated that the Petitioner could not have any personal involvement with a matter before the division beyond ministerial activities (e.g., hand delivering documents to or reviewing files at the division) or serve as an expert witness at the division before the expiration of one year from the date of his official severance from the DEM. R.I. Gen. Laws § 36-14-5(e). The Commission has used this same reasoning for other DEM, Department of Transportation (DOT) and Department of Human Services (DHS) employees. See A.O. 97-46 (DEM engineer working in Office of Waste Management could submit material for approval to the DEM's Office of Water Resources and Office of Compliance and Inspection as a private engineer so long as it was ministerial in nature and given that the Petitioner did not have contact with the Office of Water Resources and Office of Inspection and Compliance in his position in the Office of Waste Management, nor exercise any supervisory or policy-making authority within the DEM that would extend to and/or affect those offices); A.O. 97-2 ( Principal Civil Engineer in the Bridge Design Section of the DOT could submit materials for approval to the Highway Maintenance Section and Road Design Section of the DOT while employed there since the sections are separate and distinct entities within the department); and A.O. 98-5 (DHS Casework Supervisor in the East Providence Long Term Care Unit could accept private employment that may involve contact with the DHS so long as contact with East Providence Long Term Care Unit is ministerial in nature for a period of one-year from the date of separation).

In this matter, the Petitioner worked for the Office of Program Development within the DEM on the electronic recycling project. His current employer was the recipient of a grant from the DEM for the electronic recycling project and is regulated by that department. The reasoning of the above-cited advisory opinions applies to the Petitioner. The Petitioner may not have any personal involvement with a matter before the Office of Program Development except for ministerial activities such as submitting or retrieving papers until August 22, 1998, one-year from his official date of severance. See R.I. Gen. Laws § 36-14-5(e). However, the Petitioner should be aware that "ministerial" activities do not include substantive action or action that involves discretion. For instance, the Petitioner could sign a permit application and inquire whether it was complete or whether additional information was required, but a discussion about the applicability of a regulation or its interpretation is not ministerial and would be prohibited until August 22, 1998. We also caution the Petitioner that he cannot use any confidential information he gained while working at the DEM in his employment with Hetzel New England. See R.I. Gen. Laws § 36-14-5(c).

However, the revolving door prohibitions do not apply to the Petitioner's contact with DEM's Office of Customer and Technical Assistance since he did not work for that office. While at the DEM the Petitioner's only contact with Customer and Technical Assistance was in the role of providing information. He did not have a supervisory or oversight role with respect to that office, nor was his involvement with the office so protracted or integral to its operations that a potential for improper influence followed him into the private sector. The contact with that entity was more ministerial than substantive and, therefore, he is not barred by the Code of Ethics and its revolving door restrictions from interacting with it on behalf of his new employer. (The Office of Customer and Technical Assistance primarily serves as a liaison between businesses and the various divisions within the DEM.)

Code Citations:

36-14-5(c)

36-14-5(e)

36-14-5(g)

Related Advisory Opinions:

97-1

97-2

97-3

97-25

97-46

96-59

96-102

95-58

94-13

94-6

Keywords:

Post-employment

Private employment

Revolving door