Advisory Opinion No. 2001-37

Re: Thomas B. Hevner, Jr.

QUESTION PRESENTED

The petitioner, a Lincoln Planning Board member, a municipal appointed position, requests an advisory opinion as to whether his private employer may provide engineering services to the Town of Lincoln, provided that he recuses himself from any matters involving his employer and does not participate in the provision of services to the Town.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the private employer of the petitioner, a Lincoln Planning Board member, a municipal appointed position, from providing engineering services to the Town of Lincoln, provided that he recuses himself from any matters involving his employer and does not participate in the provision of services to the Town.

The petitioner advises that since June of 1998, BETA Group, Inc. has employed him as an environmental engineer in its Environmental Science Group. BETA is an 85 person company with offices in Rhode Island, Massachusetts and Connecticut. He represents that BETA has an employee stock ownership plan and his current ownership consists of less than 1% of total available common stock. He indicates that he would recuse himself from voting on contract issues involving BETA’s services and would have no personal involvement in providing services to the Town of Lincoln. Further, he advises that there are approximately thirteen other members of its Environmental Science Group, should any Town project require such services.

Pursuant to the Code of Ethics, the petitioner may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. A substantial conflict of interest occurs if the petitioner has reason to believe or expect that he or any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). He may not accept employment that will impair his judgment as to his official duties. See R.I. Gen. Laws § 36-14-5(b). Further, he is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents. See R.I. Gen. Laws § 36-14-5(d). Section 5(h) of the Code provides that public officials and employees, as well as their relatives and business associates, may not enter into contracts with any state or municipal agency “unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure or all proposals considered and contracts awarded.” R.I. Gen. Laws § 36-14-5(h). Finally, Commission Regulation 36-14-5002 requires an official to recuse himself whenever his employer or the interest of his employer comes before his board or agency

In previous advisory opinions, the Commission has advised public employees and officials seeking to contract with or provide services to the state or a municipality that they only could do so if the public entity used an open and competitive bidding process. See e.g., A.O. 97-72 (opining that the Charlestown Harbormaster, who also owned and operated a private business that sold and serviced diving equipment, could sell equipment to the Town only if it adhered to an open and public bidding process for such purchases); and A.O. 98-86 (concluding that a Westerly Town Councilor should not enter into lease arrangement unless it was pursuant to an open and public process nor could he submit a bid if he had participated in or otherwise influenced the bid development process).

In addition, the Commission previously has found that public officials or employees who participate in the bid development process for a public entity place themselves, their family members and their business associates in a privileged position with respect to other bidders. By so doing they contravene the “open and public process” required under the Code. See A.O. 95-60 (finding Narragansett Town Engineer would violate the Code of Ethics were he to accept a subcontract from Alpine Ski & Sports in the event that said company, also his employer, is awarded a contract from the Narragansett Town Council to provide scuba diving training to the Narragansett Police Department Dive Team given that the petitioner provided input as to the training involved for scuba diver certification).

The Commission concludes that the Code of Ethics does not prohibit the Town of Lincoln from contracting with the petitioner’s employer for engineering services. Here, the petitioner specifically represents that he would not have any personal involvement in the provision of services to the Town. He is not a principal of BETA Group, Inc. and owns less than 1% of its total available common stock through an employee stock ownership plan. Therefore, Section 5(h) of the Code is inapplicable to the award of a contract between BETA and the Town as it relates to the petitioner. Further, as a Planning Board member, he has no ability to extend any improper influence or control over the Town Council’s decisions regarding the award of contracts. Although not specifically addressed in this opinion, the Town nonetheless may be required to adhere to an open and public bidding process pursuant to municipal policy or regulation.

In the event that the Planning Board participates in any Request for Proposals (RFP) or contract award relating to Town engineering services, the petitioner may not participate in the preparation of RFP’s or bid review if it is reasonably foreseeable that BETA may respond. Further, in the event that BETA is awarded a Town contract, the Code of Ethics requires his prospective recusal on all matters involving his employer. See R.I. Gen. Laws § 36-14-5(a), (b), (d) and Regulation 36-14-5002. Notice of recusal should be filed with both the Town of Lincoln and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. In the absence of any improper intersection between the petitioner’s public responsibilities as a Planning Board member and his private employment interests, nothing prohibits his employer from bidding on and, if successful, contracting with the Town for engineering services

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(h)

36-14-6

36-14-7(a)

36-14-5002

Related Advisory Opinions:

2001-15

2000-40

2000-19

2000-11

99-71

98-86

97-136

97-72

97-50

96-41

95-60

95-41

95-24

94-5

91-60

91-58

Keywords:

Contracts

Private employment