Advisory Opinion No. 2016-41 Rhode Island Ethics Commission Advisory Opinion No. 2016-41 Approved: December 6, 2016 Re: Magdy A. Guirguis, PE QUESTION PRESENTED: The Petitioner, a Supervising Engineer/Structural-Ride Safety for the Building Code Commission in the Rhode Island Department of Administration, a state employee position, requests an advisory opinion regarding whether, upon his retirement from state employment, there is a waiting period during which he may not practice structural design work for residential building projects. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Supervising Engineer/Structural-Ride Safety for the Building Code Commission in the Rhode Island Department of Administration, a state employee position, may immediately upon his retirement from state employment engage in structural design work for residential building projects. The Petitioner is a licensed Professional Engineer. From 1999 to the present the Petitioner has been employed by the Rhode Island Department of Administration (“DOA”), Building Code Commission (“BCC”). The Petitioner is currently the BCC’s Supervising Civil Engineer/Structural-Ride Safety. In that capacity, the Petitioner states that his primary responsibility is to manage the Amusement Ride Safety Program, which entails reviewing amusement rides’ documentation and structural plans, conducting safety inspections, and generally ensuring compliance with the Amusement Ride Safety Act (R.I. Gen. Laws § 23-34.1 et seq.). The Petitioner states that in addition to his primary duties relating to amusement ride safety he is also involved in reviewing structural plans for state building projects, both for new buildings and for existing building upgrades, to ensure compliance with the structural chapters of the Rhode Island Building Codes. The Petitioner represents that he has notified his supervisor that he will retire from state employment on December 24, 2016. He states that, following his state retirement, he intends to begin a private practice as a Structural Engineer for both new and upgraded industrial and residential buildings. The Petitioner represents that his structural plans would be reviewed by the building official in a given city or town, and not by the BCC. However, he notes that residential contract disputes between owners and contractors are regulated and adjudicated by the BCC’s Contractors’ Registration Board (“the Board”).[1] In such a dispute alleging that a contractor failed to follow a design plan, the Petitioner states that it is possible that a structural plan bearing his name and stamp could become an exhibit before the Board. Given these representations, the Petitioner asks whether he is permitted to engage in structural design work immediately upon his retirement. The Code of Ethics provides that the Petitioner, as a public employee, shall not engage in any business, employment, transaction or professional activity which is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). The Code of Ethics further prohibits the Petitioner from accepting any other employment which will either impair his independence of judgment as to his official duties or induce him to disclose confidential information acquired by him in the course of and by reason of his official duties. Section 36-14-5(b). Because the question presented by this Petitioner relates to private employment and activities he engages in following his severance from public employment, and does not implicate his use of any confidential information, these provisions of the Code are not applicable. However, the Code of Ethics contains certain “revolving door” and “post-employment” provisions which continue to apply for up to one (1) year after a public official or employee has left his or her public position. In particular, R.I. Gen. Laws § 36-14-5(e) of the Code of Ethics prohibits a public employee such as the Petitioner from representing himself or any other person or entity, or acting as an expert witness, before any state or municipal agency of which he was a member or by which he was employed for a period of one (1) year after leaving state service. Section 36-14-5(e)(1), (2) and (4). The Petitioner states that, although he would not personally bring a matter before the Contractors’ Registration Board, it is possible that his structural plans could become an exhibit in a complaint filed by a third party against a contractor who had allegedly failed to follow the Petitioner’s design plan. The Ethics Commission has previously noted that section 36-14-5(e) should not act to restrict a public official from defending himself before his own board in an action initiated by a third party. For example, in Advisory Opinion 2006-30, the Ethics Commission opined that an Exeter Town Council member could, after recusing from participation, represent himself before the Town Council at hearings to determine whether he had violated the Town Charter. See also A.O. 98-29 (hardship exists to permit members of Contractor's Registration Board to pursue relief or defend themselves in disciplinary hearings before the Board). In the instant matter, the Petitioner has no plans to represent himself or act as an expert witness before the Contractors’ Registration Board, the Building Code Commission or the Department of Administration in the year following his retirement. The Code of Ethics does not prohibit him from engaging in structural engineering work during that period based on a possibility that his plans or other design work may become relevant in a hypothetical disciplinary proceeding against a contractor. Accordingly, it is our opinion that the Petitioner may, immediately upon his retirement from state employment, engage in structural design engineering work for residential building projects. 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. Code Citations: § 36-14-5(a) § 36-14-5(b) § 36-14-5(e) Related Advisory Opinions: A.O. 2006-30 A.O. 2005-15 A.O. 2004-29 A.O. 2001-27 A.O. 98-29 Keywords: Disciplinary authority Financial interest Recusal [1] The Petitioner states that the Contractors’ Registration Board does not regulate industrial building projects.