Advisory Opinion No. 98-92

Re: Thomas C. DeSimone

QUESTION PRESENTED

The Petitioner, the former Highway Superintendent for the City of Providence Department of Public Works, a municipal employee position, requests an advisory opinion as to whether he may perform services for his new employer, a private contractor, on a preexisting contract between the City and that employer to repair roads and sidewalks given that while employed by the City he a) advised private contractors of the work to be performed; b) inspected repairs performed by the contractors; and c) supervised the independent consultants responsible for overseeing the daily operations of the contractors.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, the former Highway Superintendent for the City of Providence Department of Public Works, a municipal employee position, from performing certain services for his new employer, a private contractor. The Petitioner may not appear before the Department of Public Works on behalf of his new employer, however, for a period of one year from the date of his official severance from City service except as to ministerial activities such as submitting or retrieving information. See R.I. Gen. Laws § 36-14-5(e)(1) and (4).

The Petitioner served as the Highway Superintendent for the Department of Public Works from October, 1995 to January, 1998. In 1997, the City, through the Department of Planning and Development, Board of Contract and Supply, and the Department of Public Works, advertised, received bids, and awarded contracts to repair City roads and sidewalks. The Petitioner was not involved in either the bid or the selection process. After the City awarded the contracts to various contractors, the Petitioner was responsible for a) preparing a description of the work to be performed by each contractor; b) inspecting the projects; and c) supervising the independent consultants retained to oversee the daily operation of the contractors. Also, on occasion the Petitioner worked with a contractor's superintendent if requested by an inspector.

Shortly after he left City service, C. Pezza and Son, Inc. (C. Pezza and Son), a company that has a contract with the City to perform certain street repairs, hired the Petitioner. As an employee of C. Pezza and Son, the Petitioner is responsible for a) preparing bids; b) overseeing construction crews; c) scheduling work; and d) billing employers. The Petitioner, as a former employee of the City of Providence, inquires as to whether he may perform services on behalf of his new employer on the contract between the City and that employer.

The Code of Ethics does not prohibit former public officials and employees from working for private employers on contracts with their former agencies, even if they had involvement with the contract while a public official or employee. While Sections 5.2 and 5.3 of the Proposed Code of Ethics would in certain circumstances prohibit this conduct they are not applicable here and likely would not affect this Petitioner retroactively. The Code of Ethics provides, however, that the Petitioner may not represent himself or any other person before any municipal agency by which he is or was employed for a period of one year after he has officially severed his position with that agency. R.I. Gen. Laws §§ 36-14-5(e)(1), (2), (4). While imposing Section 5(e)’s restrictions for substantive actions and/or appearances, previous opinions of the Commission have allowed former state employees to perform ministerial activities on behalf of their new employers, such as submission of materials for approval, retrieving papers and routine follow-ups. See A.O. 98-11 (opining that a former Department of Environmental Management (DEM) employee could not appear before his former division within the DEM for a period of one year from the date of his official severance with DEM except as to ministerial activities, such as submitting or retrieving information); A.O. 97-1 (concluding 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 the division including routine follow-ups to those submission); A.O. 97-46 (opining that a DEM engineer working in the Office of Waste Management could submit materials for approval to his office as a private engineer so long as it was ministerial in nature); A.O. 98-5 (advising that a DHS Casework Supervisor in the East Providence Long Term Care Unit could accept private employment that may involve contact with DHS so long as the contact with her former unit is ministerial in nature for a period of one-year from the date of separation).

Here, the Petitioner, as an employee of the Department of Public Works, had oversight and supervisory responsibilities for contracts to repair streets and sidewalks. His current employer is the recipient of a contract to perform just those sort of repairs for the City. As a former employee of the Department of Public Works, pursuant to the provisions of R.I. Gen. Laws § 36-14-5(e), the Petitioner may not appear before that Department on behalf of his new employer on any matter, including the preexisting contract with the City of Providence, except for ministerial activities such as submitting or retrieving papers until one year from his official date of severance from public employment. The Petitioner should be aware that "ministerial" activities do not include substantive action or action that involves discretion. For instance, the Petitioner may submit bills or invoices to the City or the Department of Public Works. The Petitioner also may oversee construction crews on behalf of his new employer. He may not, however, within a year of the date of his severance, make substantive presentations or appearances before the Department of Public Works on behalf of his employer. We also caution the Petitioner that he cannot use any confidential information that he gained while working for the City in his employment with C. Pezza and Son. R.I. Gen. Laws § 36-14-5(c).

Code Citations:

36-14-5(c)

36-14-5(e)

Related Advisory Opinions:

97-1

97-2

97-46

98-5

98-11

Keywords:

Post-employment

Private employment

Revolving door