Advisory Opinion No. 2013-31 Re: Director Richard A. Licht QUESTION PRESENTED The Petitioner, the Director of the Rhode Island Department of Administration, a state appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from seeking or accepting an appointment to the Rhode Island Superior Court. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Director of the Rhode Island Department of Administration, a state appointed position, is not prohibited by the Code of Ethics from seeking or accepting an appointment to the Rhode Island Superior Court. The Petitioner is the Director of the Rhode Island Department of Administration (“DOA”), having been appointed by Governor Lincoln D. Chafee in January 2011, with the advice and consent of the Senate. The Petitioner states that as the Director of the DOA, he oversees the DOA’s provision of supportive services to all state executive departments and agencies through its seventeen (17) programmatic functions: Central Management; Legal Services; Accounts and Control; Budgeting; Purchasing; Auditing; Human Resources; Personnel Appeal Board; Facilities Management; Capital Projects and Property Management; Information Technology; Library and Information Services; Planning; General Appropriations; Debt Service Payments; Energy Resources; and various Internal Services Programs. The Petitioner represents that the Director of the DOA is not employed in the Office of the Governor and is not a member of the Governor’s staff. He informs that his office is located across the street from the State House in the Administration Building. He states that the Office of the Governor does not invite department directors to its senior staff meetings and that he does not attend such meetings. He further represents that his powers and duties as the Director of the DOA are set by statute and are, thus, distinguishable from the powers and duties of the Governor’s senior staff which are determined by the Governor. See R.I. Gen. Laws §§ 42-11-1 & 2. In contrast to his appointment, which required the approval of the Senate, the Petitioner states that the staff members of state elected officials are selected and hired solely by that elected official, without senate advice or consent or other outside approval. The Petitioner represents that he is considering submitting an application to the Judicial Nominating Commission for the position of Associate Justice of the Rhode Island Superior Court.[1] He states that his official duties as the Director of the DOA do not involve any participation in the judicial selection process. Given the above representations, the Petitioner seeks clarification as to whether the Code of Ethics’ revolving door provisions prohibit him from seeking and accepting an appointment to the Rhode Island Superior Court. Under the Code of Ethics: No person holding a senior policy-making, discretionary, or confidential position on the staff of any state elected official or the general assembly shall seek or accept any other employment by any state agency as defined in § 36-14-2(8)(i), while serving as such policy-making, discretionary, or confidential staff member and for a period of one year after leaving such state employment as a member of the state elected official’s or the general assembly’s senior policy-making, discretionary, or confidential staff. R.I. Gen. Laws § 36-14-5(o)(1). Section 5(o) only applies to a limited group of state employees who hold a position on the staff of any state elected official or the general assembly. Of the five (5) advisory opinions in which the Commission has applied section 5(o), four (4) were issued to staff members in the Office of the Governor and one (1) was issued to a staff member of the General Assembly. See A.O. 2012-20 (applying section 5(o) to the Director of Performance Management in the Office of the Governor); A.O. 2010-53 (applying section 5(o) to a Communications and Policy Analyst in the Office of the Governor); A.O. 2010-49 (applying section 5(o) to the Deputy Executive Counsel in the Office of the Governor); A.O. 2009-16 (applying section 5(o) to the Chief of Staff of the Governor); A.O. 2003-50 (applying section 5(o) to a Senior Policy Analyst in the Senate Policy Office of the Rhode Island General Assembly). Notably, section 5(o) itself makes a distinction between the position of staff member of any state elected official and the position of a department director, providing an exception that allows staff members to move to either a comparable senior staff position with another state elected official or to a position as a department director. Section 36-14-5(o)(3).[2] This clarifies that the statute not only considers staff members of elected officials and department directors to be two separate and distinct positions, but also that the prohibition only applies to the former position. Accordingly, section 5(o)’s prohibition does not apply to the Petitioner’s position as the Director of the DOA. Furthermore, the Petitioner’s above representations are consistent with our interpretation of section 5(o) that his position as the Director of the DOA is not a “senior policy-making, discretionary or confidential” position on the staff of any state elected official or of the general assembly. While the Petitioner was appointed by the Governor, he does not work in the Office of the Governor and he does not attend the Governor’s senior staff meetings. The Director of the DOA is a statutory position, with specific powers and duties outlined by the general assembly, and appointed with the advice and consent of the Senate. For all of these reasons, it is the opinion of the Rhode Island Ethics Commission that section 5(o) does not apply to the Petitioner because he is not on the staff of any state elected official or of the general assembly. Accordingly, the Petitioner is not prohibited by the Code of Ethics from seeking or accepting an appointment to the Rhode Island Superior Court. Code Citations: § 36-14-5(o) Other Relevant Statutes: § 42-11-1 § 42-11-2 Related Advisory Opinions: A.O. 2012-20 A.O. 2010-53 A.O. 2010-49 A.O. 2009-16 A.O. 2003-50 Keywords: Revolving Door [1] “The Judicial Nominating Commission is charged with screening applicants for vacancies on all of Rhode Island’s courts. Upon notification of a judicial vacancy, the Commission advertises for interested candidates, who then complete an extensive application. The Commission then selects candidates to be interviewed, solicits public comment, and conducts background checks. Based on the information developed throughout this process, the Commission votes and submits to the Governor a list of 3-5 highly qualified individuals for each vacancy.” http://www.jnc.ri.gov/index.htm. [2] R.I. Gen. Laws § 36-14-5(o)(3) states: Nothing contained herein shall prohibit any general officer or the general assembly from appointing any such senior policy-making, discretionary, or confidential member of the staff of any state elected official or the general assembly to any other senior policymaking, discretionary, or confidential position on any general officer's or the general assembly's staff, and in the case of the governor, to a position as a department director; nor shall the provisions hereof prohibit any senior policy-making, discretionary, or confidential member of the staff of any state elected official or the general assembly from seeking or accepting any other senior policy-making, discretionary, or confidential position on any general officer's or the general assembly's staff, or from seeking or accepting appointment as a department director by the governor.