Advisory Opinion No. 98-13

Re: William T. Noonan, Esq.

A. QUESTION PRESENTED

The Petitioner, the former Pawtucket Director of Public Safety and an Administrative Aide to the Mayor of Pawtucket, municipal appointed positions, requests an advisory opinion as to whether he may represent clients in matters involving the Pawtucket Police and Fire Departments, or any other Pawtucket municipal agencies, upon his return to the private practice of law.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the Petitioner, the former Pawtucket Director of Public Safety and an Administrative Aide to the Mayor of Pawtucket, municipal appointed positions, from representing clients before the Pawtucket Police and Fire Departments for a period of one year following official severance from his employment as Director of Public Safety, except that such prohibition shall not pertain to a matter of public record in a court of law or where such representation is of a ministerial nature.

C. DISCUSSION

1. Facts

The Petitioner served as the Director of Public Safety for the City of Pawtucket and as an Administrative Aide to the Mayor of Pawtucket. As Director of Public Safety, the Petitioner was in charge of the administrative oversight of the Police and Fire Departments. On January 5, 1998, he severed his employment from these respective positions. The Petitioner advises that he anticipates returning to the private practice of law in Pawtucket. He requests an advisory opinion as to whether the Code of Ethics prohibits his representation of clients in matters involving the Pawtucket Police and Fire Departments, or any other municipal agencies.

2. Analysis

The Code of Ethics provides that the Petitioner should not represent himself or any other person before any state or municipal agency of which he is a member or by which he 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 his 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 him 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 his position with the agency. This "revolving door" language is provided so as to minimize any potential improper influence the former public official may have with his former agency.

The Commission has previously concluded that public officials cannot appear before their own agency or board before the expiration of one year from the date of their termination. The Commission consistently has ruled to uphold this position, and statutorily can only grant exceptions in specific and extreme cases of hardship, or when the representation pertains to matters of public record in a court of law. See R.I. Gen. Laws § 36-14-5(e)(4). In A.O. 96-11, the Commission concluded that a former Senior Budget Analyst should 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 would 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 Council); A.O. 90-32 (concluding that Lincoln Zoning Board of Review member should not represent clients before the Zoning Board of Review, the Planning Board, or the Town Council before the expiration of one year from severing his position with the Board).

As the former Director of Public Safety, the Petitioner here served as titular and supervisory head of both the Police and Fire Departments. For purposes of R.I. Gen. Laws § 36-14-5(e)(2) he was a member of and was employed by both departments, thereby triggering that section's prohibitions. Therefore, the Petitioner may not be personally involved in any matters involving either of those departments until January 5, 1999, one year from the date of his official severance from his position as Director of Public Safety. This prohibition does not extend to appearances before other municipal agencies, as the Petitioner was neither a member or employed by such.

The prohibitions contained in R.I. Gen. Laws § 36-14-5(e) are not absolute, however, and allow some ministerial efforts to be carried out by the Petitioner on behalf of his clients. The Commission has found that a former employee of a state or municipal agency would not risk a violation of R.I. Gen. Laws § 36-14-5(e)(4) where he represents the interests of his private employer before his former 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. 97-25; see also A.O. 94-13 (concluding that former Deputy Legal Counsel and Acting Chief of Staff for the Office of the Secretary of State 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 ones that 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").

Consistent with previous advisory opinions, the Petitioner may represent clients in matters involving the Police and Fire Departments, provided that such representation requires only ministerial acts, duties, or functions involving neither adversarial hearings nor the authority of the Police or Fire Departments to exercise discretion or render decisions. See A.O. 97-25; A.O. 94-13. For example, if the authority to make a discretionary recommendation as to whether or not an individual should be charged with an offense remains with the Police Department, the prohibitory language of R.I. Gen. Laws § 36-14-5(e)(2) would clearly apply and prevent the Petitioner from participating in such matter. Conversely, interaction with either department regarding, for example, informational requests on other non-discretionary functions would not be barred by the revolving door restrictions.

In sum, we conclude that the Petitioner may not represent clients before the Pawtucket Police and Fire Departments for any matters other than those of a ministerial nature and matters of public record in a court of law, for a period of one year following his official severance from the Department of Public Safety, without risking a violation of Code of Ethics

§ 36-14-5(e)(4). The Petitioner may, however, appear before and represent clients in matters involving other agencies of that municipality.

Code Citations:

36-14-5(e)

Related Advisory Opinions:

97-97

97-25

96-102

96-84

96-59

96-11

94-13

94-06

90-32

Keywords:

Post-employment

Revolving door