Advisory Opinion No. 2013-28 Re: Patrick M. Tigue QUESTION PRESENTED The Petitioner, a former Principal Policy Associate for the Rhode Island Office of the Health Insurance Commissioner, a state employee position, requests an advisory opinion regarding whether the Code of Ethics places any restrictions upon his acceptance of private employment with Neighborhood Health Plan of Rhode Island. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a former Principal Policy Associate for the Rhode Island Office of the Health Insurance Commissioner, from accepting private employment with Neighborhood Health Plan of Rhode Island. However, the Petitioner must refrain from representing his new employer before his former agency for a period of one year after leaving his public employment as set forth below. The Petitioner states that from March 2012 through August 9, 2013, he was employed by the Rhode Island Office of the Health Insurance Commissioner (OHIC) as a Principal Policy Associate. The OHIC was established by statute in 2004 as a division of the Department of Business Regulation (DBR) to: guard the solvency of health insurers; protect consumers; encourage the fair treatment of health care providers; encourage policies that improve the quality of health care delivery; and to set and enforce standards for health insurers that are consistent with these goals. See R.I. Gen. Laws § 42-14.5-2. As a Principal Policy Associate for the OHIC, the Petitioner states that he managed policy initiatives, operational processes, and OHIC staff and contractors. He was also responsible for leading the OHIC's annual process to evaluate health insurers' proposed rates for the ultimate approval, modification or rejection by the Health Insurance Commissioner ("the rate review process") The Petitioner notes that the Health Insurance Commissioner serves ex officio on the thirteen-member Board of the Rhode Island Health Benefits Exchange ("the Exchange"). Created by an Executive Order of the Governor in 2011, the Exchange was Rhode Island's response to the 2010 passage of the federal Patient Protection and Affordable Care Act ("Affordable Care Act"). The Exchange is distinct from the OHIC and its regulatory functions and is not a division of the DBR, instead operating as its own division within Rhode Island's Executive Department. The purpose of the Exchange is to create and offer a marketplace for individuals and employers to find and purchase quality, affordable health insurance. Given this mission, and although separate from the OHIC and having no regulatory authority over insurers, the Exchange's staff participates in the OHIC's rate review team meetings to help advise the Health Insurance Commissioner regarding his or her final insurance rate decisions. The Petitioner states that he has been offered a position as a Product Manager with Neighborhood Health Plan of Rhode Island ("Neighborhood"), a health insurer operating in Rhode Island that is subject to the OHIC's oversight and review. According to the Petitioner, the Product Manager position is responsible for, among other things, helping Neighborhood meet its contractual and regulatory reporting requirements, overseeing the preparation of filings that are made with the OHIC, and serving as a liaison to the Rhode Island Health Benefits Exchange ("the Exchange"). The Petitioner seeks guidance as to whether he may accept this offer of employment and, if so, what limitations the Code of Ethics places upon him relative to interacting with the OHIC and the Exchange. Under the Code of Ethics, the Petitioner may not, for pecuniary gain, disclose to any other person any confidential information that he received through his public employment. R.I. Gen. Laws § 36-14-5(c). Furthermore, pursuant to section 36-14-5(e)(1), (2) and (3), the Petitioner is not permitted to represent himself or any other person, or act as an expert witness, before any state or municipal agency of which he is a member or by which he is employed. A “person” is defined as an individual or business entity. Section 36-14-2(7). 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. The Ethics Commission has applied section 5(e)'s prohibitions in several analogous advisory opinions. In Advisory Opinion 2005-15, a civil engineer employed by the Rhode Island Department of Environmental Management ("RIDEM") sought advice as to whether he could accept private employment with a company that sometimes submitted applications, plans and other work to RIDEM. The petitioner represented that this private work would involve him providing design, drafting and consulting on projects that would be submitted to RIDEM for approval, but that he would not personally sign any application materials, utilize his personal engineers' stamp on any plans, nor engage in any direct communications with RIDEM personnel concerning subject applications. Given these facts, the Commission opined that such conduct would not constitute representing his employer before his own agency. Similarly, in Advisory Opinion 2000-66, the Commission opined that the former Chief of Employee Benefits for the Department of Administration was not prohibited from accepting employment with a financial services firm that contracted with the state to offer an employee deferred compensation plan, but that he was prohibited from directly representing his new employer before the Employee Benefits Unit and the Department of Administration for one year. See also A.O. 2012-12 (senior environmental scientist at the Rhode Island Department of Environmental Management was not prohibited from working for the Rhode Island Natural Resources Conservation Service upon his retirement from state employment, provided that he did not represent his new employer before his former agency for a period of one year following his official date of severance); A.O. 2004-9 (analyst in the State Budget Office could accept private employment as Director of an outside organization but was prohibited from representing that organization before the State Budget Office). Applying section 5(e) of the Code to the instant matter, the Petitioner is very clearly prohibited from representing Neighborhood before the OHIC for a period of one year after severing his employment there. Prohibited acts include any contacts or communications, whether written or verbal, which are intended or likely to influence any deliberations or decisions made by the OHIC including, but not limited to, the rate review process. Notwithstanding this prohibition, section 5(e) does not prevent the Petitioner from providing advice or direction to Neighborhood concerning its interactions and filings with the OHIC. See supra A.O. 2005-15. Furthermore, the Petitioner may engage in contacts with the OHIC that are purely ministerial in nature and do not involve any substantive decision-making on the OHIC's part. Examples of ministerial contacts are hand delivering documents, reviewing public records, and requesting public information. Additionally, although the Exchange is a distinct agency from the OHIC, the Petitioner concedes that there is close interaction and collaboration between the two agencies relative to the rate review process. Indeed, staff members from the Exchange participate in OHIC's rate review process and make recommendations as to approval, modification or rejection. For this reason, the Petitioner has affirmatively represented that he will not, during section 5(e)'s one year cooling-off period, represent Neighborhood before the Exchange or its personnel relative to the rate review process. It is our opinion that such action is required by section 5(e), given the Exchange's significant role in OHIC's rate review process. The Petitioner is permitted to represent Neighborhood before the Exchange in other matters that are distinct from OHIC's decision-making, and he is encouraged to seek further guidance from the Ethics Commission on particular issues as needed In summary, the Code of Ethics does not prevent the Petitioner from seeking or accepting employment with Neighborhood. The Petitioner is, however, prohibited from disclosing to Neighborhood any confidential information he received through his employment with the OHIC. He is also prohibited from representing Neighborhood before the OHIC, and before the Exchange concerning the rate review process, for a period of one year following his severance from the OHIC. Code Citations: 36-14-2(7) 36-14-5(c) 36-14-5(e) Other Legal Authority: R.I. Gen. Laws § 42-14.5-2 Governor's Executive Order 11-09 Related Advisory Opinions: 2012-12 2005-15 2004-9 2000-66 Keywords: Post-Employment Private Employment Revolving Door