Amended Advisory Opinion No. 2008-23 Rhode Island Ethics Commission Amended Advisory Opinion No. 2008-23 Re: Robert LaFazia QUESTION PRESENTED The Petitioner, a Johnston School Committee member, a municipal elected position, who also is the owner and operator of La Fazia Auto Body & Auto Sales Company, Inc. (“La Fazia”), requests an advisory opinion as to whether his business may perform auto body repair on municipal vehicles and may be appointed to the town towing list. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a Johnston School Committee member, a municipal elected position, who is also the owner and operator of La Fazia Auto Body & Auto Sales Company, Inc., is prohibited from performing auto body repair on town vehicles and is prohibited from accepting appointment to the town towing list. The Petitioner is a member of the Johnston School Committee (“School Committee”). He states that he is also the owner and operator of La Fazia Auto Body & Auto Sales Company, Inc. (“La Fazia”), located in Johnston, Rhode Island. He represents that he has been advised by Mayor Joseph Polisena (“the Mayor”) that La Fazia is being considered for appointment to the town’s towing list. He states that if appointed to the towing list, his business would be called by the Johnston Police Department to perform emergency towing of vehicles. He further states that prior to his election to the School Committee, his business had been included on the town’s towing list for approximately thirty years, but was removed from the list some years prior to his election to the School Committee. He represents that the manner by which the list operates is that each company on the towing list is assigned a time shift; if services are required during a certain shift, the company assigned to that time shift is the one called to provide the services. He states that it is his understanding that the Mayor makes the appointments to the towing list, and that further, vacancies are not advertised in advance, nor is there disclosure after appointments are made as to the proposals considered and contracts awarded. Separate and apart from appointment to the towing list, the Petitioner states that the town contracts with individual auto service companies to perform repairs on municipal vehicles. The Petitioner represents that as services are needed for municipal vehicles that have been involved in accidents, such as police and recreation vehicles, the work goes out to open bid and whichever company submits the lowest estimate is chosen to do the repairs, with subsequent disclosure of the bids received. Finally, the Petitioner affirmatively represents that if his company was selected to perform either type of service, he would not participate in the towing or repair of any vehicles that are operated by the school district or under the school district’s jurisdiction. Under this set of factual circumstances, the Petitioner requests an advisory opinion as to whether he is prohibited by the Code of Ethics from performing auto body repair on municipal vehicles or from accepting appointment to the towing list while serving as an elected member of the Johnston School Committee. 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 in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if he 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 § 36-14-7(a). Furthermore, pursuant to R.I. Gen. Laws § 36-14-5(d), the Petitioner 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 or a family member. Additionally, Commission Regulation 36-14-5014 provides that no municipal elected official or school committee member “shall seek or accept employment with any municipal agency” in the same municipality in which said official serves, “other than employment which was held at the time of the official’s election or appointment to office.” Id. Finally, the Code of Ethics prohibits the Petitioner or any person within his family from entering into a contract with any state or municipal agency unless the contract is awarded though an open and public process. See R.I. Gen. Laws § 36-14-5(h). In the facts of this Petitioner’s request, as a School Committee member, Commission Regulation 5014 prohibits the Petitioner from seeking or accepting employment with any municipal agency in Johnston, other than employment held at the time of his election to office, while he is holding office and for a period of one year after leaving office. See id. Accordingly, as to the Petitioner’s contracting to provide repair services to municipal vehicles or contracting to provide towing services to the town, the Petitioner is prohibited from doing so while he is serving as a School Committee member and for a period of one year after leaving office pursuant to Regulation 5014, as “employment” is defined under 5014(a)(1) to “also include service as an independent contractor.” Id. Furthermore, under Section 5(h) of the Code of Ethics, public officials and their family members may only enter into contracts with state or municipal agencies so long as they are awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. The Commission consistently has advised municipal employees seeking to contract with, or provide services to, a municipality that they could only do so if the municipality used an open and competitive bidding process. See A.O. 2008-14 (Chairperson of the Coventry Planning Commission may respond to an RFQ to perform municipal engineering services for the Town, provided that he did not participate in the bid specification process and that any contract awarded is pursuant to an open and public bidding process); 2003-5 (Cumberland School Committee member may provide fundraising services to the Cumberland School District provided that the contract is awarded through an open and public bidding process); 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). The only exceptions recognized by the Commission to this strict prohibition have been for emergencies and isolated purchases of nominal value. Therefore, in addition to the prohibition, pursuant to Regulation 5014, against seeking or accepting municipal employment while serving on the School Committee, the Petitioner is also prohibited by section 5(h) from entering into a contract to provide services to any department within the Town of Johnston, absent an open and public process. In this instance, according to the Petitioner, there is no open bid process by which companies are selected to be on the towing list, nor is there prior notice or subsequent disclosure of all proposals considered and contracts awarded, but rather, the discretion as to who is appointed to the list is vested solely in the Mayor. Therefore, it is the opinion of the Ethics Commission that the Petitioner is also prohibited by R.I. Gen. Laws § 36-14-5(h) from entering into a contract to provide towing services to the Town of Johnston. Code Citations : § 36-14-5(a) § 36-14-5(d) § 36-14-5(h) § 36-14-7(a) Commission Regulation 5014 Related Advisory Opinions : 2008-14 2003-5 97-72 Keywords : Contracts Private Employment