Advisory Opinion No. 2005-60

Re:  Mark E. Felag 

QUESTION PRESENTED:

The petitioner, Chief Civil Engineer for the Rhode Island Department of Transportation (Materials), a state employee position, requests an advisory opinion as to whether he may teach a graduate course in civil engineering at the University of Rhode Island for one semester in the near future, given that he is a member of the Joint Research Advisory Council that reviews and recommends for funding research proposals submitted by the University of Rhode Island for payment by the Rhode Island Department of Transportation.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics that the petitioner, Chief Civil Engineer for the Rhode Island Department of Transportation (Materials), a state employee position, may teach a graduate course in civil engineering at the University of Rhode Island for one semester in the near future provided that he recuses from participating in all matters that come before him that directly impact the University of Rhode Island, including all matters before the Joint Research Advisory Council and any matters handled by his subordinate staff, during the duration of his one semester teaching contract with the University of Rhode Island. 

The petitioner informs that he is the Chief Civil Engineer with the Rhode Island Department of Transportation (“RIDOT”), which is a full-time employee position.  He represents that his main duties include quality assurance of materials, road and bridge construction projects, specification writing, and aggregate sources (approving stone from quarries). 

Additionally, the petitioner informs that one of his duties is to serve as a member of the Joint Research Advisory Council (“JRAC”).  He represents that the JRAC was formed approximately twelve years ago and that its membership is comprised of several individuals chosen by RIDOT and several chosen by the University of Rhode Island (“URI”). He states that he was chosen by RIDOT to serve on the JRAC.  He informs that he spends approximately 1 to 2 hours per year of his time as a member of the JRAC and that his subordinates spend approximately 6 hours per year of time attending meetings and discussing matters related to the JRAC.  

He represents that the JRAC was originally established to review, vote on, and recommend for funding research proposals submitted by URI to RIDOT.  The petitioner states that this funding is provided by RIDOT from money set aside out of the total RIDOT research fund.  The petitioner represents that the responsibilities of JRAC have somewhat expanded over time, however, he informs that the main role of JRAC remains considering, voting on, and recommending URI projects for funding by RIDOT from this set funding.  The petitioner states that this funding is set each year and is up to approximately $100,000 to $200,000 dollars per year.  The petitioner represents that this funding is only awarded to URI and that it usually permits the RIDOT to fund up to approximately four URI projects each year. 

The petitioner represents that the JRAC meets two or three times a year to discuss the projects submitted by URI.  After reviewing the URI projects, the petitioner informs that the members of JRAC vote on the projects and make a final recommendation on what projects to fund to the RIDOT’s Chief Engineer, the petitioner’s superior, who makes the final decision on what URI projects will be funded by RIDOT.  The petitioner informs that the traditional time for JRAC to vote on these projects is during the summer, specifically in June or July. 

The petitioner also informs that his subordinate staff reviews, as Technical Reviewers, URI research projects that are being funded and are underway.  He informs that these staff members, as well as the Chief of Research at RIDOT and possibly other RIDOT staff members, meet together with the URI researchers working on the projects to discuss their progress and to go over their quarterly reports.  The petitioner states that these reviews usually take place without his input; however, on rare occasions, he informs that his staff will ask him for his input.  As examples of these occasions, the petitioner informs that his staff may seek his input on recommendations to improve a project or when there are compliance difficulties with a project.

During telephone conversations, the petitioner informed that he is no longer interested in teaching a class this fall as he stated in his initial, written advisory opinion request; however, he informed that he is still considering teaching a graduate civil engineering course in the future, possibly as early as the fall semester of 2006.  He informs that this class is essentially about “rocks and blocks” and is currently titled CVE 549, Non-bituminous Material and Mix Design.  He states that he would be paid by URI to teach this class through an independent contract.  The petitioner states that he would like an advisory opinion to determine whether the Code of Ethics prohibits him from teaching such a course at URI given that he is a member of the JRAC that reviews research proposals submitted by the URI for payment by RIDOT.    

The petitioner informs that he has already consulted with the Director of Personnel at RIDOT who told him that he could teach the class as long as he did not vote on or review any work submitted by URI professors.  He represents that he will not participate in any discussions with his staff regarding their review of existing URI projects during the time period of his teaching contract with URI, essentially the duration of an academic semester.  Instead, he informs that he will ask his supervisor, Deputy Chief Engineer of Construction Management, to provide such input for the time period that he teaches the course.  He also informs that he will direct his staff members to go directly to his superior for such input for this time period.  Furthermore, for the duration of his teaching contract for this one semester, the petitioner specifically represents that he will recuse himself from participating as a member of the JRAC.

Under the Code of Ethics, a public official 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.  See R.I. Gen. Laws §§ 36-14-5(a).  A substantial conflict of interest occurs if it is reasonably foreseeable 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.  R.I. Gen. Laws § 36-14-7(a); Regulation 36-14-7001. 

Under R.I. Gen. Laws § 36-14-5(b), the petitioner may not accept outside employment that will impair his independence of judgment.  A public official also may not use his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself or a business associate.  See R.I. Gen. Laws § 36-14-5(d).  Under the Code of Ethics, a business associate is defined as an individual or business entity joined with a public official to achieve a common financial objective.  See R.I. Gen. Laws §§ 36-14-2(3) and 2(7).  While the petitioner is being paid by URI to teach this graduate course, he and URI will be considered business associates under the Code of Ethics.  

Section 5(f) of the Code prohibits a business associate of a public official from representing himself before the official’s agency unless (a) the business associate notifies the official’s agency of the nature of their relationship, and (b) the official recuses himself from voting on or otherwise participating in the agency's consideration of the matter at issue.  R.I. Gen. Laws § 36-14-5(f).

The Commission opines that the petitioner may teach a graduate civil engineering course at URI for one semester based on his representations and provided that he will recuse from participating in any RIDOT matters that will directly financially impact URI for the duration of his one semester teaching contract.  See A.O. 97-7 (opining that a member of the Individual Sewage Disposal System Technical Review Committee must recuse himself from consideration of matters where the member currently provides consulting work for the company that is before the Board); A.O. 94-60 (opining that a North Kingstown Planning Commission member may not participate in the consideration of a subdivisions proposal submitted by an engineer where the member planned to engage in business projects with that engineer in the immediate future).  The Commission specifies that during this time the petitioner may not provide input to his subordinate staff on URI projects and relies on the petitioner’s representation that the Deputy Chief Engineer of Construction Management, who is the petitioner’s superior, will provide such input to his subordinate staff during this time.

The petitioner is advised that this opinion is based on his representation that he plans to teach this class for one semester and that his business association with URI will be limited.  The petitioner should be aware that the Commission’s advice would change if he decided to teach a class for more than one semester at URI because his business association with URI would then become continuing and not a one-time occurrence.  The Commission advises the petitioner to seek further advice should the facts he presented change.

Code Citations:

36-14-2(3)

36-14-2(7)

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(f)

36-14-7(a)

Regulation 36-14-7001

Related Advisory Opinions:

97-7

94-60

Keywords:

Financial interest

Private employment

Recusal