Advisory Opinion No. 2008-14

Rhode Island Ethics Commission

Advisory Opinion No. 2008-14

Re:  Russell S. Crossman

QUESTION PRESENTED:

The petitioner, Chairman of the Town of Coventry Planning Commission, a municipal appointed position, requests an advisory opinion as to whether his engineering firm, Crossman Engineering, Inc., may respond to a Request For Qualifications published by the Town of Coventry to perform municipal engineering services on behalf of the Town.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, Chairman of the Town of Coventry Planning Commission, a municipal appointed position, who in his private employment is part-owner of Crossman Engineering, Inc., may respond to a Request For Qualifications published by the Town of Coventry to perform municipal engineering services on behalf of the Town, provided that:  (1) he does not participate in the bid specification process in any Request For Qualifications or contract award relating to engineering services provided to the Town, (2) any contract is awarded pursuant to an open and public bidding process in accordance with R.I. Gen. Laws § 36-14-5(h); and (3) he recuses from participating in any matter when his business associates and/or employees appear before his board.

The petitioner informs that he is the Chairman of the Coventry Planning Commission (“Planning Commission”), a nine-member board appointed by the Town Council.  He informs that the members of the Planning Commission are appointed to five (5) year terms and that his term is set to expire on May 1, 2008.  The petitioner advises that he would be eligible for reappointment for another five (5) year term and would accept such reappointment if offered by the Town Council.

In his private capacity, the petitioner advises that he has an ownership interest and serves as Vice President and Secretary of Crossman Engineering, Inc. (“Crossman Engineering”).  The petitioner informs that Crossman Engineering is a multi-disciplined civil engineering and land surveying firm that performs professional engineering services throughout the State of Rhode Island and New England for various state and municipal agencies and private sector clients.

The petitioner advises that the Town of Coventry (“Town”) has published a Request For Qualifications (“RFQ”) seeking proposals from private vendors to perform municipal engineering services on behalf of the Town.  The petitioner informs that the Town Council eliminated the Town’s Engineering Department as a cost saving measure in February of this year.  The petitioner advises that Crossman Engineering provides the same professional services for several municipalities in Rhode Island and would like to submit a proposal to the Town in response to this RFQ and provide such services to the Town if awarded the contract.[1]  The petitioner represents that he does not personally perform the specific services and that his resume would not be included in the submitted RFQ.  The petitioner further represents that the Town Manager drafted the bid specifications for the RFQ, which was reviewed and approved by the Town Council, and that he did not have any involvement in the drafting of same.  The petitioner advises that the Town Manager reviews all responses to the RFQ and makes his recommendation to the Town Council, who then votes to award the contract.  Lastly, the petitioner advises that the Planning Commission meets once per month and that it was likely that his business associates and/or employees would appear before the Planning Commission if awarded the contract.  The petitioner represents that he was unsure if such appearances would occur at every meeting, but that it was possible, and that he will recuse when such situations occur.

Under 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 and employment in the public interest. See R.I. Gen. Laws § 36-14-5(a), 7(a).  He may not accept outside employment that will impair his independence of judgment as to his official duties or employment.  See R.I. Gen. Laws § 36-14-5(b).  He also may not use his public employment or confidential information received through his public employment to obtain financial gain for himself or for a business which he represents.  See R.I. Gen. Laws § 36-14-5(d).  A public official may not represent himself or any other person before any state or municipal agency by which he is a member or by which he is employed.  See R.I. Gen. Laws § 36-14-5(e)(1), (2).  This prohibition applies not only during the period of membership or employment, but is extended for a period of one year after he has officially severed his position with said state or municipal agency. See R.I. Gen. Laws § 36-14-5(e)(4).  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).  A “business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective.”  R.I. Gen. Laws § 36-14-2(3).  Section 5(h) of the Code provides that public officials, 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 of all proposals considered and contracts awarded.”  R.I. Gen. Laws § 36-14-5(h).

The Commission has previously advised municipal employees and officials seeking to contract with or provide services to a municipality that they only could do so if the municipality used an open and competitive bidding process.  See A.O. 2002-20 (opining that a member of the Lincoln Parks and Recreation Commission could respond to an RFP published by any state or municipal agency, including the Town of Lincoln, provided that (1) he did not participate in the bid specification process for the RFP in contracts involving the Town of Lincoln; and (2) any contract was awarded pursuant to an open and public bidding process); A.O. 2001-37 (concluding that the Code of Ethics did not prohibit the private employer of a member of the Lincoln Planning Board from providing engineering services to the Town, given his representations that he would not participate in the provision of services to the Town and that he would recuse himself from any matters involving his employer).

Additionally, the Commission previously has found that public officials 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. 98-86 (concluding that a Westerly Town Councilor should not enter into a 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); A.O. 95-60 (finding the 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).  See also A.O. 2003-5; A.O. 2002-20; 2001-37.

Here, the Commission concludes that the Code of Ethics does not prohibit the petitioner’s company, Crossman Engineering, from accepting a contract to perform municipal engineering services on behalf of the Town.  The petitioner represents that he did not have any involvement in drafting the bid specifications for the RFQ.  He represents that he will not personally participate in the provision of the services to the Town and that he will recuse from participating in any matter when his business associates and/or employees appear before his board.  Additionally, from the information provided by the petitioner, it appears that the “open and public process” required by Section 5(h) has been followed.

Notwithstanding the above, while the Commission finds that the proposed business relationship between the Town and Crossman Engineering would not violate the Code of Ethics, we do find it somewhat troublesome.  Based upon the petitioner’s own representations regarding the possible frequency of his recusals, such action could eventually lead to his ineffectiveness as Chairman of the Planning Commission.  However, such matter may be addressed by the petitioner’s appointing authority rather than by this Commission.  The petitioner is reminded that when recusing, he should do so in accordance with R.I. Gen. Laws § 36-14-6.  Finally, this opinion does not, and cannot, address whether any municipal charter or ordinance, or any statute, agency regulation, ruling, or policy prohibits such activity.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(e)

36-14-5(f)

36-14-5(h)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2003-5

2002-20

2001-37

98-86

95-60

Keywords:

Contracts

Private Employment