Advisory Opinion No. 2006-1 Advisory Opinion No. 2006-1 Re: Anthony J. Silva A. QUESTION PRESENTED: The petitioner, the Chairman of the Police Officers Commission on Standards and Training (the POST Commission), a state appointed position, requests an advisory opinion regarding whether he may accept an offer of employment by the POST Commission to become the Director of the Rhode Island Municipal Police Training Academy. B. SUMMARY: It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Chairman of the Police Officers Commission on Standards and Training (the POST Commission), a state appointed position, may accept an offer of employment by the POST Commission to become the Director of the Rhode Island Municipal Police Training Academy (the Training Academy). This opinion is based upon a finding by the Ethics Commission that the facts represented indicate that the denial of such employment would create a substantial hardship for the POST Commission and the Training Academy. C. DISCUSSION: 1. Facts At all relevant times, the petitioner has been employed as the Chief of the Cumberland Police Department. In 1999, the petitioner was appointed by Governor Lincoln Almond to be a member and Chairman of the Police Officers Commission on Standards and Training (the POST Commission). He was reappointed in 2002, and again in April 2005 for a three-year term that expires in 2008. There is no limit to the number of terms a POST Commission member may serve. The petitioner relates that the POST Commission is charged with, among other things, overseeing the operation of the Rhode Island Municipal Police Training Academy (the Training Academy), including reviewing and approving the curriculum and the hiring of staff, including the Director. The petitioner represents that in December 2004, the Director of the Training Academy resigned his position. Since that time another employee of the Training Academy, who has since also applied to fill the vacant Director's position, has served as Acting Director. Upon the former Director's resignation, the petitioner states that he became interested in applying to fill the vacancy. He relates that he considered resigning from his position on the POST Commission at that time, but after consideration of the matter and consultation with others, he decided to continue serving on the POST Commission while recusing himself from matters pertaining to filling the Director's position. The petitioner states that the POST Commission Vice-Chair at that time, Sheriff Gary Dias, coordinated with the Department of Administration-Office of Personnel to advertise the position. He relates that on April 1, 2005, he reported at a POST Commission meeting that he had been informed by the Governor's Office that the Director's position would be posted soon. The petitioner states that later in April, Vice-Chair Dias was replaced by Colonel Stephen M. McCartney. The petitioner states that he notified Vice-Chair McCartney by letter dated April 13, 2005 that he was strongly considering applying for the Director's position, and that he would recuse and not attend any further POST Commission meetings to avoid any discussion concerning the vacancy. The petitioner notes that he did not attend the next two meetings of the POST Commission held on April 26 and May 4, 2005. At the April 26meeting, the POST Commission discussed the minimum qualifications that would be required for Director candidates, and also discussed the possibility of raising the salary range. At the May 4 meeting, the POST Commission agreed to seek to raise the salary for the Director to a range of $71,000 to $81,000 annually and agreed upon certain criteria that the successful Director candidate must possess, and that would support the proposed salary increase. These criteria included: (1) Bachelor's degree in Criminal Justice or related field with Master's degree preferred; (2) "managerial skills to handle the large volume of recruit and in-service training of all RI municipal police, with the exception of the City of Providence, in a challenging resource, personnel staff and fiscal environment[;]" (3) strategic thinking and vision "to set a course of action for the organization in order to meet the demands of 21st century policing, dealing with police executives, federal, state & local enforcement authorities; local, national and international academia, local and national civil rights leaders, social service and business community leaders on all issues of present and future law enforcement and public policy[;]" (4) fundamental knowledge of CALEA law enforcement accreditation and law enforcement training accreditation; and (5) understanding of latest police teaching techniques and police technology advances, with capability of instituting same into the training curriculum. See Post Commission Meeting Minutes for May 4, 2005. The minutes of the meeting indicate that Vice-Chair McCartney was tasked with formalizing the criteria and, together with POST Commission member Stephen Pare, meeting with the Rhode Island Department of Administration to arrange for posting of the job listing. The petitioner states that the Director's vacancy was advertised nationally by the State Office of Personnel Administration in early July 2005. The advertisement described the position's duties and qualifications as follows: Directs all activities associated with training of municipal law enforcement officers; makes recommendations as to minimum appropriate standards for training schools and evaluates pre-service and in-service training programs for municipal police departments; develops specialized courses of study for police officers. Supervises subordinate staff. Required qualifications: Possession of Bachelor's Degree in Criminal Justice or closely related field (Master's Degree in Criminal Justice or closely related field is preferred); AND ten years experience in public law enforcement or its equivalent and five years command experience or its equivalent. The petitioner represents that by letter dated July 12, 2005, he notified Vice-Chair McCartney that he would be a candidate to fill the Director vacancy and attached an executed recusal form. He also states that he sent a copy of the recusal form to the "Conflicts of Interest Commission." Although the petitioner attached a copy of a July 12, 2005 recusal form to the instant request for an advisory opinion, such form cannot be located in the files of the Ethics Commission. The petitioner formally applied for the vacant position with a cover letter and resume to Vice-Chair McCartney dated July 13, 2005. The petitioner states that he attended the next meeting of the POST Commission, on July 21, 2005, to notify the Commission members of his candidacy for the Director's position and to present another copy of the recusal form. The minutes of this meeting reflect these representations. According to Vice-Chair McCartney, the POST Commission received 24 applications for the Director's position. Of these, eight candidates including the petitioner were selected for interviews and further consideration. On or about October 13, 2005, the petitioner and remaining candidates appeared before the POST Commission in executive session for such an interview. Vice-Chair McCartney states that following these interviews, six of the eight candidates "were not found to have the desired qualifications necessary for the position and are thus not under further consideration." Of the remaining two candidates that did meet the requirements of the position, Vice-Chair McCartney states that the petitioner was ranked first and the other was selected to be an alternate in case the petitioner became unavailable to fill the vacancy. This alternate candidate, however, has since withdrawn his application according to Vice-Chair McCartney. On October 28, 2005, the Commission staff received an unsigned, anonymous letter recounting the petitioner's application to the POST Commission for the Director's position, and asking for an investigation into whether such conduct was permitted under the Code of Ethics. A member of the Commission staff made contact with the petitioner by telephone to inquire into the situation, and to advise the petitioner that Commission Regulation 5006 was a likely impediment to his ability to accept the Director's position if offered. The petitioner informed the staff member that he was aware of the Code of Ethics' jurisdiction over his situation, that he had recused from all POST Commission discussions relating to the position and selection process, and that if offered the position he had intended to seek guidance from the Ethics Commission. By letter dated November 10, 2005 from POST Commission Vice-Chair McCartney, the petitioner was informed that he had been selected for the position of Director of the Training Academy. The offer was expressly conditioned upon the receipt of written clearance from the Ethics Commission and compliance with Regulation 5006. The instant request for advisory opinion was received by the Commission on December 8, 2005. Therein, the petitioner seeks a ruling by the Ethics Commission that his acceptance of the position would not contravene the Code of Ethics. In conjunction with the petitioner's request, the Commission also received correspondence from Vice-Chair McCartney on behalf of the POST Commission, requesting that the petitioner be permitted to accept the Director's position based upon a finding of hardship to the Training Academy in the absence of such permission. 2. Analysis Ethics Commission Regulation 5006 is one of the so-called "revolving door" provisions of the Code of Ethics.[1] Regulation 5006, entitled "Employment From own Board," generally prohibits elected and appointed officials from accepting paid employment or appointment that is offered by or through their own board or elective body. The regulation reads as follows: No elected or appointed official may accept any appointment or election by the body of which he or she is or was a member, to any position which carries with it any financial benefit or remuneration, until the expiration of one (1) year after termination of his or her membership in or on such body, unless the Ethics Commission shall give its approval for such appointment or election, and, further provided, that such approval shall not be granted unless the Ethics Commission is satisfied that denial of such employment or position would create a substantial hardship for the body, board, or municipality. Commission Regulation 5006. Enacted by the Ethics Commission in 1991 along with other provisions, the Commission has stated that the general purpose of Regulation 5006 is to prevent government employees and officials from unfairly profiting from or trading upon the contacts, associations and special knowledge that they acquired while performing their public duties as members of state and municipal boards. A.O. 2004-36 (citing In re Advisory From the Governor, 633 A.2d 644, 671 (R.I. 1993)). The Commission has had frequent opportunity to apply Regulation 5006 in advisory opinions. See A.O. 2004-36 (state employee sitting on Rhode Island Water Resources Board as designee of Director of Administration may not accept employment as General Manager of the Water Resources Board); A.O. 2001-53 (former Tiverton Town Councilor may not accept appointment as Tiverton Fire Chief prior to expiration of one year from date of leaving position on Council, given that appointment requires Council's advice and consent); A.O. 2000-32 (absent a finding of hardship, a member of the East Providence Carousel Commission would be prohibited from seeking and accepting employment from the Carousel Commission as Manager of the City's Carousel); A.O. 2000-4 (member of Board of Rhode Island State Council on the Arts may not accept Governor's appointment as State Poet, since State Poet must be nominated and recommended by Board, and honorarium is paid through budget administered by Board); A.O. 99-104 (East Greenwich Town Councilor prohibited from accepting appointment by Council to Kent County Water Authority); A.O. 99-94 (Town of Coventry School Committee member may not accept appointment by School Committee to paid position of Head Wrestling Coach at Middle School); A.O. 99-76 (absent finding of hardship, Westerly Recreation Board member prohibited from accepting position as clerk of works advertised by Recreation Board); A.O. 99-60 (member of Rhode Island Bridge and Turnpike Authority’s Board of Directors may not seek employment with Turnpike Authority as its Executive Director until expiration of period of one year following his termination of membership on Board); A.O. 98-104 (Providence School Board Member, if elected to City Council, may not seek or accept reappointment to School Board since Board members receive compensation and Council participates in such appointments); A.O. 97-138 (Pawtucket City Council member may not accept appointment by Council to paid position on board); A.O. 97-117 (former Middletown Council member may not accept Council's appointment to position as Director of Senior Center during one-year period after her Council term expired, unless she agrees to permanently waive compensation); A.O. 97-41 (Warwick School Committee member may apply for and accept coaching position only if he agrees to waive any financial remuneration); A.O. 97-26 (former Warwick City Councilor may not accept appointment by Mayor to Sewer Authority within year of leaving office, given that position is paid and subject to Council confirmation); A.O. 97-17 (member of Warren Town Council may not seek or accept reappointment by Council to Board of Directors of Bristol County Water Authority); A.O. 96-85 (former member of Middletown School Committee may not seek or accept employment as Superintendent of Schools until expiration of one year from her leaving office); A.O. 96-79 (member of Warwick Board of Canvassers may not accept appointment to become paid Clerk of the Board). The facts represented by the instant request for advisory opinion clearly implicate the provisions of Regulation 5006. The petitioner has been a member and the Chairman of the POST Commission from 1999 through the present. The POST Commission's responsibilities include advertising for, interviewing and selecting a Director of the Training Academy. The advertised salary for the Director is $71,000 to $81,000. Based on these factors, the petitioner is prohibited by Regulation 5006 from accepting the POST Commission's offer of employment as the Director of the Training Academy unless the Ethics Commission gives its approval based upon a finding of substantial hardship. Regulation 5006 provides for a single exception to its prohibition on accepting employment from one's own board. Such exception is authorized only if "the Ethics Commission is satisfied that denial of such employment or position would create a substantial hardship for the body, board, or municipality." Regulation 5006. Without a showing and finding of hardship to the governmental body, as opposed to a hardship to the public official seeking employment, the official may not accept a paid appointment from his own Board. There is no definition of "substantial hardship" in the Code. In the few instances that the Commission has considered whether a Regulation 5006 hardship exists, however, the factors most relied upon have been either a complete absence of any other applicants, or a lack of other candidates that are qualified to fill the subject position. The Commission has also considered whether the employment is a temporary measure or is intended to be permanent. Opinions in which the Commission has determined that a substantial hardship exists are recounted below: Most recently, in A.O. 2000-32, the Ethics Commission determined that a substantial hardship under Regulation 5006 existed and permitted a member of the East Providence Carousel Commission (Carousel Commission) to seek and accept employment from the Carousel Commission as Manager of the City's Carousel. This finding of hardship was based upon (1) the fact that the Carousel Commission had twice published advertisements for the position and did not receive any qualified applications, and (2) there was a represented history of failure to attract and keep qualified persons in the position. Similarly, in A.O. 99-076, a Westerly Recreation Board member was permitted to accept a position as "clerk of the works" advertised by the Recreation Board. The Ethics Commission held that the Recreation Board had demonstrated a hardship given the lack of any qualified candidates to fill the position and because the position was both temporary and part-time. In A.O. 95-118, the Commission found that circumstances created a substantial hardship to the Rhode Island Commission on Women, and allowed one of its members to temporarily serve as the Commission's interim Executive Director until a permanent replacement could be obtained through an open and public hiring process. The basis for the hardship included the following representations: a) the Commissioner was uniquely familiar with the issues affecting equity for women, the work of the Commission, and the Commission's office procedures; b) the Commission had been without a full-time Executive Director for over six months; c) the Commissioner would resign from her position on the Commission; d) the Commissioner would serve as Interim Executive Director only until the Commission completed its search for a permanent replacement, a sixth month period; and e) the hiring process for the Executive Director would be an open and public process. Finally, in A.O. 95-68, the Commission determined that there was a substantial hardship to the Newport Common Burial Ground Advisory Commission (Burial Commission) that justified allowing a member to respond to a Burial Commission Request for Proposals (RFP) to survey historical gravestones. The Ethics Commission relied on representations that the RFP received no responses after being circulated to the public. The Commission also noted that, if selected, the member would take a leave of absence from the board and take no part in any review of their proposal. Because a "substantial hardship," if found, must be experienced by the public body rather than by the public official, it is appropriate and necessary to consider the representations of the POST Commission in support of the petitioner's request. In his letter to the Commission, Vice-Chair McCartney represents that he speaks for the entire POST Commission in stating that only two of the 24 applicants for the position were found to "have the desired qualifications necessary for the position[.]" He states that there are "no other viable candidates." It is not clear whether this statement is based on a subjective determination after interviews, or based more objectively on a failure of the candidates to possess the required qualifications posted in the position's advertisement.[2] Vice-Chair McCartney also states that the POST Commission is concerned that the position be filled in an expedient manner, "as the passage of time is and will continue to present a hardship until a permanent director is hired for the Municipal Training Academy." Finally, Vice-Chair McCartney devotes most of his letter to the petitioner's qualifications and fitness for the position. In that regard, it should be noted that the Ethics Commission has received letters from other individuals attesting to the petitioner's outstanding character and overall fitness for the position.[3] However, it must be emphasized that the petitioner's status as a qualified candidate, or perhaps even as the most qualified candidate, sheds very little light on the question of whether it would be a substantial hardship to the Training Academy if the POST Commission were not permitted to hire one of its members, the petitioner, to be Director of the Training Academy. The Ethics Commission could assume arguendo that the petitioner is the most qualified candidate for the job, but still find that no substantial hardship exists if other, less but suitably qualified individuals not on the POST Commission are available to fill the vacancy. To reiterate, the key issue is not whether the petitioner is the most qualified candidate. Rather, the main factor in determining whether a substantial hardship exists is whether there are other qualified candidates currently available or that may become available through a second posting of the position. For example, in A.O. 2004-36 a member of the Rhode Island Water Resources Board (Water Board) asked the Ethics Commission whether he could accept an offer by the Water Board to employ him as its General Manager. In his request letter the petitioner set forth his impressive credentials for the post and asserted that the Water Board "would be harmed by not having a very highly, perhaps uniquely, qualified candidate to consider." The Commission did not dispute that the petitioner was impressively qualified for the position at issue. Notwithstanding such qualifications, the Commission concluded that his ineligibility for the post would not create a substantial hardship for the Water Board. The Commission concluded that "for a hardship to exist there must be some evidence that there is a dearth of other qualified individuals interested in the position." A.O. 2004-36. That statement continues to guide our analysis in determining whether a Regulation 5006 hardship exists. D. CONCLUSION: Having considered the petitioner's and the POST Commission's representations, as well as our previous advisory opinions in this area, it is the opinion of the Rhode Island Ethics Commission that the petitioner, the Chairman of POST Commission, may accept an offer of employment by the POST Commission to become the Director of the Training Academy. This opinion is based upon a finding by the Ethics Commission that the Police Academy would suffer a substantial hardship if not able to hire the petitioner as its Director. The Commission bases this finding on specific representations made by the POST Commission, through its Vice-Chair, including: (1) that the POST Commission publicly advertised the position and received 24 applications; (2) that the POST Commission then interviewed eight applicants, including the petitioner; (3) that only two of the eight interviewed applicants, one of whom was the petitioner, were deemed to possess the qualifications desired for the Director's position; and (4) that the second-ranked applicant subsequently withdrew his application, leaving the petitioner as the only remaining qualified applicant. We also note, and rely upon, the petitioner's representation that he recused from participating in any POST Commission matters pertaining to filling the Training Academy Director vacancy. Code Citations: 36-14-5006 Related Advisory Opinions: 2004-36 2001-53 2000-32 2000-4 99-106 99-104 99-94 99-76 99-60 98-104 98-87 97-138 97-117 97-41 97-26 97-17 96-85 96-79 96-36 95-118 95-68 Keywords: Revolving Door Hardship exception