Advisory Opinion No. 99-140

Re: Mazen Alsabe

QUESTION PRESENTED

The petitioner, a civil engineer in the Bridge Inspection Unit of the Rhode Island Department of Transportation (DOT), a state employee position, requests an advisory opinion as to whether he may establish a private bridge construction company when he leaves state employment.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a civil engineer in the Bridge Inspection Unit of the Rhode Island Department of Transportation (DOT), a state employee position, from establishing a private bridge construction company when he leaves state employment. However, the petitioner and/or his company may not appear before the Bridge Inspection Unit of the DOT for a period of one-year following his official severance of employment with that division. R.I. Gen. Laws § 36-14-5(e). Further, the petitioner/company may not use any confidential information he obtained while working for the DOT for financial gain. See R.I. Gen. Laws § 36-14-5(b),(c), and (d).

The petitioner is a civil engineer employed in the Bridge Inspection Unit of the Rhode Island Department of Transportation (DOT). He advises that his duties within the Unit involve scheduling bridges to be inspected, supervising inspection personnel and monitoring inspection crews. He indicates that he is contemplating leaving state employment to form a bridge construction company which may bid on state/federal bridge construction related contracts in Rhode Island and neighboring states. He represents that the Bridge Inspection Unit has no involvement with bridge construction.

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. This “revolving door” language is provided so as to minimize any influence the former public official may have in a consideration by his former agency that is not available to the general public. 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 concludes that the Code of Ethics does not prohibit the petitioner from establishing a private bridge construction company. However, pursuant to R.I. Gen. Laws § 36-14-5(e)(4), the petitioner and/or his company may not appear before the Bridge Inspection Unit of the DOT for a period of one-year following the petitioner’s official severance of employment with that division. Section 5(e)’s revolving door restrictions do not extend to the petitioner having substantive involvement in matters before DOT divisions, agencies or departments other than the Bridge Inspection Unit, provided that in his previous employment with the DOT he did not exercise supervisory or policy-making authority within the particular division or agency.

This opinion comports with numerous prior advisory opinions in which the Commission limited application of the revolving door prohibition to the particular division within a large department like the DOT where the employee formerly was employed. See A.O. 98-11 (concluding DEM employee was not barred or restricted from interacting with a DEM division with which he had no substantive involvement during his employment, but that he was limited to performing ministerial activities in any matter which would involve the division by which he was formerly employed); A.O. 97-46 (opining that 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 A.O. 97-2 (finding that the Principal Civil Engineer in the Bridge Design Section of the DOT could submit materials for approval of the Highway Maintenance Section and Road Design Section while employed there since the sections are separate and distinct entities within the department); and A.O. 98-5 (concluding that 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 prior advisory opinions and the prohibition contained in Section 5(e), the petitioner and/or his company may not have any personal involvement with a matter before the Bridge Inspection Unit of the DOT that goes beyond ministerial activities (e.g. hand delivering documents to or reviewing files at the division) so as to constitute representing himself or another person nor may he serve as an expert witness before the expiration of one year from the date of his official severance from the Unit. R.I. Gen. Laws § 36-14-5(e). The prohibition extends to any co-workers and/or contractors working on behalf of his company. Finally, the petitioner may not use any confidential information he obtained while working for the DOT for financial gain. R.I. Gen. Laws § 36-14-5(b), (c), (d).

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:

99-124

99-108

99-70

99-61

98-96

98-92

98-13

98-11

98-5

97-46

97-2

97-1

96-102

94-13

Keywords:

Post employment

Private employment

Revolving door