Advisory Opinion No. 99-125

Re: Todd Chaplin, P.E.

A. QUESTION PRESENTED

The petitioner, a former employee of the Rhode Island Department of Health’s Office of Drinking Water Quality, a state employee position, requests an advisory opinion as to whether 1) his firm, Mount Hope Engineering, Inc., may submit materials to the Office of Drinking Water Quality if another agent of the firm represents it at any required hearings before that agency; and 2) an independent firm may represent his client using his firm’s work before his former agency.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the petitioner’s firm, Mount Hope Engineering, Inc., and/or its agents may not appear before the Rhode Island Department of Health’s Office of Drinking Water Quality for a period of one-year following the date of the petitioner’s official severance of employment with that agency. R.I. Gen. Laws § 36-14-5(e). However, the petitioner/firm may engage in ministerial activities before the Office of Drinking Water Quality, such as submitting or retrieving information. See R.I. Gen. Laws § 36-14-5(e)(1) and (4). Further, an independent firm may be engaged by his client to handle appearances before his former agency during the one-year period. Nothing in the Code prevents the petitioner from recommending another firm to handle such appearances provided he does not hire, engage, or share in a financial interest with the recommended firm. Finally, the petitioner/firm may not use any confidential information he obtained while working for the Office of Drinking Water Quality for financial gain. See R.I. Gen. Laws § 36-14-5(b), (c), (d).

C. DISCUSSION

1. Facts

The Rhode Island Department of Health’s Office of Drinking Water Quality employed the petitioner as a supervising engineer from July 12, 1992 until December 4, 1998. After leaving state employ, he became a partner in Mount Hope Engineering, Inc., a Massachusetts based firm that provides civil and environmental consulting services to various clients throughout Southern New England. In addition to being among Mount Hope’s three owners, he also serves as its president. In the spring of 1999, the company was hired to provide engineering services for two clients in Rhode Island. He advises that the firm must submit materials to the Office of Drinking Water Quality for approval, including permit and variance applications for the siting of new public water supply wells, which may necessitate hearings before that Office. The petitioner represents that he would not appear personally before his former agency, but he seeks guidance from the Commission as to whether another Mount Hope agent may represent the firm at hearings before said agency. In the alternative, he inquires whether the firm may recommend another firm to handle any requisite appearances his former agency.

2. Analysis

The Code of Ethics provides that the petitioner may 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). R.I. Gen. Laws § 36-14-5(e)(3) provides that he 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 he is employed or represents. Further, Section 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner officially has severed his position with the agency. The legislative intent of this “revolving door” language presumably is to minimize any potential improper influence the former public official may have with his former agency. Finally, R.I. Gen. Laws §§ 36-14-5(b), (c) and (d) prohibit the use and/or disclosure of confidential information acquired by an official or employee during the course of or by reason of his official employment, particularly for the purpose of obtaining financial gain.

The Commission consistently has concluded that under the very strict, but very clear, language of Section 5(e) that public officials and employees may not appear before their own agency or board before the expiration of one year from their date of separation. See A.O. 96-11 (concluding 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); A.O. 94-06 (opining 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 city 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 expiration of one year from severing his position with the Board); and A.O. 89-2 (holding that a DEM employee could accept private employment as a consultant, but could not represent himself, any other person, or act as an expert witness before DEM for a period of one year after officially severing his position).

Although the Commission has concluded that individuals subject to the Code may not appear before their own agency or board prior to the expiration of one year from their date of separation, said prohibition does not extend to the performance of ministerial acts. See A.O. 97-46 (concluding 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); 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).

Based upon Section 5(e) of the Code and past advisory opinions, it is clear that the petitioner may not appear before the Office of Drinking Water Quality for a period of one-year following his official severance from employment with that agency. Since he is the president and one of three owners of Mount Hope, the revolving door prohibitions extend to the entire firm, including its officers and employees. The petitioner/firm may have substantive involvement in matters before Department of Health divisions other than the Office of Drinking Water Quality, or other state agencies provided that the petitioner did not exercise supervisory or policy-making authority within the particular division or agency and maintained only peripheral contact with the particular division or agency. However, he and the firm of which he is a principal may not have any personal involvement with a matter before the Office of Drinking Water Quality Office that goes beyond ministerial activities (e.g. hand delivering documents to or reviewing files at the Office) so as to constitute “representing another person”, nor serve as an expert witness before the expiration of one-year from the date of his official severance from employment with that agency. R.I. Gen. Laws § 36-14-5(e). Additionally, the petitioner/firm may not use any confidential information he obtained while working for the Office of Drinking Water Quality for financial gain. See R.I. Gen. Laws § 36-14-5(b),(c), and (d).

Finally, the petitioner inquires whether, in the event that he and his firm are prohibited from appearing before the Office of Drinking Water Quality, he may recommend another firm to handle any requisite appearances before his former agency.

In a recent advisory opinion, the Commission found that an engineer employed by the Department of Environmental Management (DEM) who worked within the Individual Sewage Disposal Systems (ISDS) division and subsequently transferred to a different DEM division may not appear before the ISDS division until expiration of the one year period. See A.O. 99-7. There, the Commission extended Section 5(e)’s prohibitions to any co-workers and/or contractors working on behalf of the petitioner’s company unless some procedure or mechanism could be devised to insulate his public duties from the company’s private endeavors. See also A.O. 97-1. Therefore, based upon the intent of the revolving door prohibitions and consistent with the recent opinion above, the Commission reaffirms that Section 5(e)’s prohibitions extend to any partners and/or employees of the petitioner’s firm. However, nothing in the Code of Ethics prevents the petitioner from recommending another firm to his client so long as he does not hire, engage or otherwise share any financial interest with the recommended firm.

This opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. This Commission offers no opinion on the effect of any other statute, ordinance, constitutional or charter provision or canons of professional ethics may have on your situation. Under the Code of Ethics advisory opinions are based on the representations made by, or on behalf of, an official and are not adversary, or investigative proceedings.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(c)

36-14-5(d)

36-14-5(e)

Related Advisory Opinions:

99-108

99-70

99-61

98-92

98-96

98-11

98-5

97-46

97-2

97-1

96-102

96-11

94-13

94-6

90-32

89-2

Keywords:

Post-Employment

Private Employment

Revolving Door