Advisory Opinion No. 2016-15
Approved: April 26, 2016
Re: Nina Pande
The Petitioner, a member of the Providence School Board, a municipal appointed position, requests an advisory opinion regarding whether she qualifies for an exception to Commission Regulation 36-14-5014 so that she may apply for employment with the City of Providence as the Mayor’s Director of Policy.
It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Providence School Board, a municipal appointed position, is prohibited by the Code of Ethics from seeking or accepting employment with the City of Providence as the Mayor’s Director of Policy because Commission Regulation 36-14-5014 prohibits such employment for members of the School Board and the circumstances represented herein do not justify an exception.
The Petitioner is a member of the Providence School Board (“the School Board”) and has been serving in that capacity continuously since her initial appointment in 2010. Pursuant to the Providence Home Rule Charter (“City Charter”), each of the School Board’s nine (9) members is appointed by the Mayor, with the approval of the City Council, to a three-year term. The Petitioner was originally appointed in 2010 to fill an unexpired term left vacant due to a resignation, but since then she was reappointed in 2011 and 2014. The leadership of the School Board consists of a President, Vice President and Secretary elected by the members for one-year terms. The Petitioner currently serves as the Vice President but notes that she has served in all three positions during her tenure. She states that she, along with the others serving in the School Board’s leadership roles, meets regularly with the Mayor to discuss matters relevant to the school district and to share information and ideas. School Board members receive an annual stipend of $3,500.
The Petitioner represents that she was recently asked by Providence Mayor Jorge Elorza to consider applying to fill a vacancy in the position of the Mayor’s Director of Policy. The Petitioner states that she wishes to apply for this full-time, municipal employee position that serves as a senior advisor to the Mayor. The Petitioner notes that the City Charter prohibits School Board members from simultaneously holding any other paid office or employment in the City; therefore, if she were hired as Director of Policy she would be required to resign from the School Board.
In addition to the City Charter restriction on School Board members being employed by the City, the Petitioner is also aware that the “Municipal Official Revolving Door” provision of the Code of Ethics, Commission Regulation 36-14-5014 (“Regulation 5014”), prohibits school committee members from seeking or accepting other employment with any agency in the same municipality, both while serving and for a period of one year thereafter. Given the application of Regulation 5014 to her situation, the Petitioner seeks a finding that her circumstances fit within the single exception to Regulation 5014, which permits the Ethics Commission to allow such employment in circumstances whereby the employment would not create an appearance of impropriety. See Regulation 5014(c). The entire provision reads as follows:
Regulation 36-14-5014 – Prohibited Activities – Municipal Official Revolving Door.
(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.
Here, because the Petitioner is a “municipal school committee member,” the general prohibition of Regulation 5014(a) clearly applies and she is prohibited from seeking or accepting employment with the City while serving on the School Board and for one year after her service on the School Board ends, unless the Ethics Commission authorizes an exception under Regulation 5014(c) upon a finding that, under the circumstances, allowing the Petitioner to apply for the Director of Policy position would not create an appearance of impropriety.
Although not specifically referring to Regulation 5014, the Rhode Island Supreme Court has noted that “the legislative aim of the revolving-door provisions is to ensure that public officials adhere to the highest standards of conduct, avoid the appearance of impropriety, and do not use their positions for private gain or advantage.” In re Advisory from the Governor, 633 A.2d 664, 671 (R.I. 1993)(citing R.I. Const., art. 3, sec. 7). The Court further observed that “[t]he integrity of our government officials is quintessential to our system of representation. In general the purpose of revolving-door provisions is to prevent ‘government employees from unfairly profiting from or otherwise trading upon the contacts, associations and special knowledge that they acquired during their tenure as public servants * * *.’” Id. at 671 (quoting Forti v. New York State Ethics Comm’n, 554 N.E.2d 876, 878 (1990)).
The instances in which the Ethics Commission has allowed an exception to Regulation 5014’s application have all involved unique circumstances where allowing the sought after employment would not be inconsistent with the above-mentioned purposes of revolving door regulations.
For example, in Advisory Opinion 2015-22 the Ethics Commission allowed an exception to permit a Charlestown Town Council member, who had left office less than a year previously, to apply for the position of Charlestown Director of Parks & Recreation. The unique circumstances presented there included: 1) that she had previously held the position for twenty-two years until she was terminated in 2010; 2) that she had immediately challenged her termination as wrongful, filed suit and favorably settled the case, and; 3) that at the time of settlement her reinstatement was problematic because the position had already been filled by another person. In such unusual circumstances, the Commission found that permitting her application would not create an appearance of impropriety.
Similarly, in Advisory Opinion 2013-36, the Commission granted an exception to Regulation 5014 to allow the former Portsmouth Town Clerk to accept temporary employment by the Town to be “Acting Clerk” while the newly elected Town Clerk was on medical leave. There, the unique circumstances presented included: 1) that the newly elected Town Clerk was required to go on temporary medical leave; 2) that it was important to find a person who could run the Clerk’s office and Probate Court with no interruption in service; and 3) that the position was only temporary, lasting until the actual Town Clerk returned from leave.
See also, A.O. 2015-43 (granting a Regulation 5014(c) exception to a North Kingstown School Committee member who had been appointed to fill a vacant seat after an elected member was disqualified from office, and permitting her to apply for Town Manager position, given her interim appointment to a normally elected position and her short period of service); A.O. 2014-5 (granting a Regulation 5014(c) exception to a former New Shoreham Town Council member and permitting his business to bid on new municipal service contracts through an open and public bidding process for services, given that the petitioner’s business had been providing these municipal services for at least ten years, the business was his primary source of income, his representation that he would not have sought election to the Council if he had known he would have been prohibited from bidding on these same contracts going forward, and the fact that he immediately resigned from the Council when he learned of Regulation 5014’s application).
The common thread in each of the above advisory opinions is the existence of unique or unusual circumstances beyond the fact that a public official is seeking, and is qualified for, municipal employment. In cases where no such unique circumstances were presented, the Commission has enforced Regulation 5014’s strict prohibitions. See A.O. 2013-37 (member of New Shoreham Town Council is prohibited by Regulation 5014 from bidding on any new contracts with the Town); A.O. 2013-11 (member of the Pascoag Fire District Board of Commissioners, a municipal elected position, was prohibited by Regulation 5014 from seeking or accepting employment as a volunteer firefighter in the Pascoag Fire District); A.O. 2010-58 (member of Providence City Council, who was a private attorney, was prohibited by Regulation 5014 from accepting new work representing any Providence agency); A.O. 2008-23 (member of Johnston School Committee was barred by Regulation 5014 from contracting with the town to repair municipal vehicles).
In the instant matter, the Petitioner notes that she is not an elected official. Rather, she states that Providence School Board members are appointed by the Mayor with the approval of the City Council. The Petitioner notes a significant difference between the appointed Providence School Board and school committees with elected members is that, pursuant to a state law enacted in 2011, appointed school boards do not negotiate or approve collective bargaining agreements. Rather, in Providence and other municipalities with appointed school committees, such authority is vested in the Mayor or other chief executive. Nevertheless, the Petitioner states that the School Board’s powers and duties as set forth in the City Charter and by state law continue to include the authority to independently develop a budget, approve vendor contracts, employ the superintendent and provide advice and consent on all other appointments within the Providence Public School District.
In further support of an exception to Regulation 5014, the Petitioner details her extensive experience not only on the School Board, but through her private employment and community involvement. She further notes an impressive educational background. These representations seem to indicate that the Petitioner is qualified, through both experience and education, to serve as the City’s Director of Policy. There is no indication, however, that she is uniquely qualified for the position or that there are no other qualified persons available.
Considering the Petitioner’s representations, and after review of our past advisory opinions interpreting Regulation 5014 and its exception, we do not find any sufficiently unique or compelling circumstances to justify an exception to the Regulation’s clear restrictions. To allow an exception in this case, where the only bases for the exception are the Petitioner’s credentials and her appointed status, would amount to an implicit repeal of the Regulation’s application to appointed school committee members. Accordingly, it is the opinion of the Rhode Island Ethics Commission that the Petitioner is prohibited by the Code of Ethics from seeking or accepting employment with the City of Providence as the Mayor’s Director of Policy because Regulation 36-14-5014 prohibits such employment for members of school committees, whether elected or appointed, and there are no unique circumstances present to justify an exception to the prohibition.
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.
Commission Regulation 36-14-5014
Related Advisory Opinions:
 While drafting and considering the passage of Regulation 5014 in 2006, the Commission was aware that, although most school committee members in Rhode Island are elected officials, the members of the Providence School Board and those of a small number of other municipalities are mayoral appointees. The intent of the Commission was to include all school committee members, whether elected or appointed, within the Regulation 5014’s reach.