The Revolving Door Between Board Membershp and a Job Approved by the Board

One kind of revolving door that is often ignored is the move from elected or appointed board or commission membership and a paid position that is approved by and under the direction of the same board or commission. It makes it look as if the board member were using her position to get herself a nice job, and exclude others. It also puts the board members in the conflicted position of overseeing a former colleague, who might very well be seen to have made a deal with them that would give them something in return for their approval. Controversial decisions down the road will be questioned not just on the basis of policy, but also on the basis of preferential treatment toward the administrator or the administrator's failure to stand up to the board's majority that had approved her hiring.

It is just this sort of revolving door situation that became controversial last week in Rhode Island. According to an article in the Providence Journal, the chair of the state's Board of Education was nominated by the governor to be the interim commissioner of higher education (salary of about $200,000), a position that must be approved and supervised by the board of ed.

There is a rule in Rhode Island (where ethics laws apply to both state and local officials) that prohibits this sort of appointment unless the state ethics commission gives a waiver based on "substantial hardship to the board or municipality":

§36-14-5006. Employment from Own Board. No elected or appointed official may accept any appointment or election that requires approval 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 year after termination of his or membership in or on such body, unless the Ethics Commission shall give its approval … [and] such approval shall not be granted unless the Ethics Commission is satisfied that denial of such employment or position would create a substantial hardship to the board or municipality.

The Journal article looks at two similar instances when the ethics commission was asked for a waiver (a term that better describes the action than the term "approval"). The EC waived the prohibition in a case where a member of the Commission on Women was named to be its executive director, because the candidate had special qualifications and the job vacancy had not attracted many applicants. The job had been open for six months.

Yet even here, it should be asked how hard the commission tried. Perhaps its members wanted this candidate to get the job, and made little effort to fill the position.

The EC chose not to waive the prohibition in another case, where a member of the state's Water Resources Board was named to be its general manager. The EC found that there was not "a dearth of other qualified individuals interested in the position.''

In refusing to provide a waiver, the EC quoted a state supreme court decision, which said that 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."

The Poor Handling of This Revolving Door Situation
On its face, the candidate here does not have a good argument for a waiver. She is a lawyer with only her recent experience in education. There are a lot of equally or more qualified people who would likely apply for the position.

That is why the candidate is making a different argument for "substantial hardship." According to a WPRI article, the argument is that the hardship derives from what would be a lengthy and costly search for a new commissioner. There are two problems with this argument. One is that it was known for a long time that the current interim commissioner's term was coming to an end. The search should have started months ago. Two is that this argument could be used in every situation. It's always a pain to do a search or bid out a contract. But this pain is considered worth the bother, because the alternative opens the way for ethical misconduct and undermines trust in government.

Even worse than making a weak argument such as this was the scheduling of the announcement for Friday afternoon (see the press release) when the board of education was to meet on Monday to approve the appointment. If not for Common Cause Rhode Island, it is likely that the appointment would have been made without seeking a waiver from the EC (as it is, the board of ed chose not to consider the appointment). What appears to be an attempt to sneak past the law, even if it was not, should cause the candidate to take her name out of contention.

Robert Wechsler
Director of Research-Retired, City Ethics

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