Advisory Opinion No. 2009-22 Rhode Island Ethics Commission Advisory Opinion No. 2009-22 Re: Christopher Warfel QUESTION PRESENTED The Petitioner, a member of the Town of New Shoreham Electric Utility Generation Task Group, a municipal appointed position, requests an advisory opinion regarding whether he is prohibited by the Code of Ethics from submitting bids in response to RFPs regarding renewable energy technology issued by the Town of New Shoreham, given that he was the primary author of the RFPs. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Town of New Shoreham Electric Utility Generation Task Group, a municipal appointed position, is prohibited by the Code of Ethics from submitting bids in response to RFPs regarding renewable energy technology issued by the Town of New Shoreham, given that he was the primary author of the RFPs. The Petitioner represents that he is a resident of the Town of New Shoreham (“Town”). He further represents that in his private capacity, he is a practicing professional engineer, with degrees in civil forestry and mechanical engineering, and has worked for over twenty-five years in energy related industries, including electric utilities, energy service companies, and as owner of his own firm specializing in energy utilization and renewable energy. He further states that in 2007, because of his professional experience and expertise, he was appointed by the New Shoreham Town Council (“Town Council”) to the five-member Electric Utility Generation Task Group (“EUGTG”). He represents that the group was formed by the Town of New Shoreham for the sale of the Block Island Power Company (“BIPCO”) to the Town. The Petitioner states that the Town formed the EUGTG as a committee of professionals with experience in finance, utility operations, regulations, accounting, and energy generation with the mission of determining various possible ownership forms in the purchase of BIPCO and, more generally, how the cost of electricity in the Town could be reduced. While the EUGTG entered into negotiations on behalf of the Town with the owners of BIPCO for the sale of BIPCO, the EUGTG ultimately recommended to the Town that the sale not go forward at that time. Subsequently, the EUGTG took up the task of attempting to reduce the cost of electricity for the Town. To that end, the Town now hopes to initiate some renewable energy-based technology in order to reduce the cost of electricity. As a member of the EUGTG, the Petitioner was approached by the Town to author several Requests for Proposals (“RFPs”) for renewable energy technology projects. Initially, the Petitioner told the Town that he would be unable to do so, as he intended to submit bids on the RFPs. However, after two months passed and the Town was unable to find anyone else to author the RFPs, in order to move the projects forward to the point where prices could be obtained for possible grant funding, the Petitioner did in fact write them. He represents that he wrote the RFP specifications in such a way that they do not favor a Block Island based contractor over one from another location. Additionally, he states that the RFPs are structured in the same format used approximately ten years ago when the Town participated in U.S. Department of Energy grants and refer to various nationally recognized standards. Finally, the Petitioner states that the RFPs must be approved by the Town Council prior to being published. Given this set of facts, the Petitioner requests an advisory opinion as to whether or not the Code of Ethics prohibits him from submitting bids in response to the RFPs in question when they issue, given that he was the primary author of them. 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 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). 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, pursuant to section 5(h). 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); 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). Additionally, the Commission has previously 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. 2003-5 (opining that a member of the Cumberland School Committee may only submit a bid to provide private fundraising services to the school district if he has not participated in or otherwise influenced the bid development process); A.O. 2002-20 (opining that a Lincoln Parks and Recreation Commission member was not prohibited from responding to an RFP published by any state or municipal entity, including the Town of Lincoln, provided that he did not participate in the bid specification process for the RFP in contracts involving the Town of Lincoln); 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). Thus, in accordance with R.I. Gen. Laws § 36-14-5(h) and prior advisory opinions, it is the opinion of the Ethics Commission that the Petitioner is prohibited from submitting bids in response to any of the RFPs for renewable energy technology projects in which he participated in the bid specification or RFP development process. Code Citations : § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) § 36-14-5(h) Related Advisory Opinions : A.O. 2008-14 A.O. 2003-5 A.O. 2002-20 A.O. 98-86 Keywords : Private Employment Request for Proposals