Advisory Opinion No. 2013-36 RHODE ISLAND ETHICS COMMISSION Approved: November 19, 2013 Re: Kathleen Viera Beaudoin QUESTION PRESENTED: The Petitioner, the former Town Clerk for the Town of Portsmouth, a municipal elected position, requests an advisory opinion regarding whether she may accept temporary, part-time employment with the Town of Portsmouth during the scheduled medical leave of the current Town Clerk. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the former Town Clerk for the Town of Portsmouth, may accept temporary, part-time employment with the Town of Portsmouth during the scheduled medical leave of the current Town Clerk. This opinion is based on a finding that the unique circumstances set forth in this request justify an exception to the Code of Ethics’ Municipal Official Revolving Door regulation. The Petitioner is the former Town Clerk for the Town of Portsmouth. She represents that she voluntarily resigned from office on June 30, 2013, after serving as Town Clerk since December 1, 2003, and with a total of twenty-six years of employment with the Town. An elected official, the Town Clerk acts as the head of the department of public records and serves as the recorder of deeds; registrar of births, marriages and deaths; clerk of the Probate Court; and clerk of the Town Council. The current Town Clerk, Joanne M. Mower, is scheduled to undergo a medical procedure on December 17, 2013, which will cause her to be out work temporarily. Ms. Mower has indicated that depending upon the speed of her recovery she expects to return to her duties on a part-time basis in mid-January 2014, and to return to her full-time duties as soon as possible thereafter.[1] Ms. Mower has further noted that she is presently the only person in the Clerk’s office that has knowledge and experience in the operation of the Town’s Probate Court. In order to minimize disruption to the operations of the Clerk’s office and, particularly, to the Probate Court, Ms. Mower and the Town Administrator have asked the Petitioner to return to the Clerk’s office on a short-term, temporary basis until Ms. Mower returns from her medical leave. Ms. Mower has expressly represented that this will not become a permanent position with the Town, and that she is unaware of any other reasonable alternative available to keep the Clerk’s office, and the Probate Court, running properly and efficiently during her leave. The Petitioner is willing to undertake this temporary employment to assist the Town, but is aware that the Code of Ethics generally prohibits former elected officials from accepting employment by the same municipality for one year after leaving office. She asks whether the unique circumstances set forth above would justify the application of the revolving door provision’s exception. Commission Regulation 36-14-5014, entitled “Municipal Official Revolving Door,” generally prohibits a municipal elected official from leaving elective office in a city or town and then, within one year, obtaining employment in that same city or town. The provision reads as follows: (a) No municipal elected official or municipal school committee member, whether elected or appointed, while holding office and for a period of one (1) year after leaving municipal office, shall seek or accept employment with any municipal agency in the municipality in which the official serves, other than employment which was held at the time of the official’s election or appointment to office or at the time of enactment of this regulation, except as provided herein. (1) For purposes of this regulation, “employment” shall include service as defined in R.I. Gen Laws § 36-14-2(4) and shall also include service as an independent contractor or consultant to any municipality or municipal agency, whether as an individual or a principal of an entity performing such service. (2) For purposes of this regulation, “municipal agency” shall include any department, division, agency, commission, board, office, bureau, authority, quasi-public authority, or school, fire or water district and any other agency that is in any branch of municipal government and exercises governmental functions other than in an advisory nature. (b) Nothing contained herein shall prohibit a municipal elected official or municipal school committee member, whether elected or appointed, from seeking or being elected to any elective office. (c) The Rhode Island Ethics Commission may authorize exceptions to this regulation where such exceptions would not create an appearance of impropriety. Regulation 36-14-5014. See A.O. 2013-11 (member of Pascoag Fire District Board of Commissioners may not seek or accept position as firefighter in the district while holding office as Commissioner and for one year after); A.O. 2010-58 (member-elect of Providence City Council may continue his pre-existing legal representation of municipal agency after election, but may not accept any new representation of a city agency while serving and for one year after); A.O. 2008-23 (member of Johnston School Committee may not be appointed to Town’s towing list or perform auto body repair of Town vehicles, while serving on the School Committee and for one year after). In the instant matter the Petitioner, as a former municipal elected official who left office within the past year, falls squarely within the scope of Regulation 5014’s application. However, we believe that the representations of the Petitioner, and the supplemental representations of the current Town Clerk and Town Administrator, justify the application of the regulation’s exception found in subsection (c). In particular, we note that the proposed employment is temporary and short-term, and is necessitated by a medical leave. The supplemental letter from the Town Clerk and Administrator indicate that this temporary measure is necessary to maintain function and efficiency in the Clerk’s office and, particularly, in the Probate Court during the period of the Clerk’s medical leave. Under these circumstances, we find that an exception to the revolving door regulation does not create an appearance of impropriety. Accordingly, the Ethics Commission authorizes subsection (c)’s exception to Regulation 36-14-5014, and the Petitioner is permitted to accept temporary, part-time employment with the Town of Portsmouth during the scheduled medical leave of the current Town Clerk. We note, however, that this exception applies only for the short duration of time represented in the request, and that any extension of this employment beyond that limited time-frame will require the Petitioner to seek and obtain further guidance and instruction from the Ethics Commission. Code Citations: Regulation 36-14-5014 Related Advisory Opinions: A.O. 2013-11 A.O. 2010-58 A.O. 2008-23 Keywords: Revolving Door This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. [1] The current Town Clerk, Joanne M. Mower, submitted a letter in support of the Petitioner’s request for an advisory opinion which provides many of the facts and circumstances that the Commission relies upon herein. Ms. Mower’s letter is also counter-signed by the Portsmouth Town Administrator, John C. Klimm.