Advisory Opinion No. 2010-51

Rhode Island Ethics Commission

Advisory Opinion No. 2010-51

Re: Christopher Duhamel

QUESTION PRESENTED

The Petitioner, a member of the State Board of Registration for Professional Engineers, a state appointed position, requests an advisory opinion concerning whether he may participate in the Board's determination as to tasks that may or may not be performed by professional engineers and professional land surveyors, given that the Petitioner is registered and employed as both a professional engineer and a professional land surveyor in Rhode Island.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the State Board of Registration for Professional Engineers, a state appointed position, is not prohibited by the Code of Ethics from participating in the Board's determination as to tasks that may or may not be performed by professional engineers and professional land surveyors, notwithstanding that the Petitioner is registered and employed as both a professional engineer and a professional land surveyor in Rhode Island.

The Petitioner is privately employed by DiPrete Engineering Association, Inc. as a professional civil engineer and land surveyor.  He represents that he is properly registered in Rhode Island as a professional engineer and as a professional land surveyor.

The Petitioner is a member of the State Board of Registration for Professional Engineers ("BRPE").  The BRPE was established to administer the provisions of Rhode Island Gen. Laws § 5-8-1 et seq., and particularly to "establish any rules and regulations for the conduct of its own proceedings, for examination of applicants, for registration of professional engineers and engineers-in-training, for continuing education requirements, for conducting disciplinary proceedings to include investigating complaints to the board and for governing the practice of engineering all that it deems appropriate."  R.I. Gen. Laws § 5-8-3(b).  The BRPE consists of five (5) members appointed by the Governor, all of whom must be either a professional engineer or professional land surveyor registered in Rhode Island, and have been "engaged in the lawful practice of engineering for at least twelve (12) years and been in responsible charge of engineering work for at least five (5) years."  See R.I. Gen. Laws § 5-8-4.

The Petitioner represents that in 1990 the BRPE's predecessor board, the State Board of Registration for Professional Engineers and Land Surveyors ("Joint Board"), adopted a "Task List" that delineated which professional services could be performed by only a professional engineer, only a professional land surveyor, or by either.[1] At some point thereafter, the Joint Board was abolished and separate boards were created for both the professional engineers (the BRPE) and the professional land surveyors (State Board of Registration for Professional Land Surveyors, or "BRPLS").  Recently, both the BRPE and the BRPLS have jointly undertaken to update and amend the Task List for engineers and land surveyors.  Any amendments to the Task List may have an impact on the ability of members of either profession to continue offering their services to perform particular tasks.

Given the Petitioner's private employment and registration as both a professional engineer and a professional land surveyor, he asks whether the Code of Ethics prohibits his participation in the BRPE's amendment of the Task List that may expand or limit the services he can provide in either capacity.

Under the Code of Ethics, no public official shall in any way use his public office or confidential information received through his holding any public office, to obtain financial gain, other than that provided by law, for himself, a family member, any business associate, an employer or any business which he represents. See R.I. Gen. Laws § 36-14-5(d).  In addition, 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 and employment in the public interest.  See R.I. Gen. Laws § 36-14-5(a).  A “substantial conflict” is present where a public official, a family member, a business associate, an employer, or any business which the public official represents will derive a direct monetary gain or suffer a direct monetary loss by reason of the official’s activity.  See R.I. Gen. Laws § 36-14-7(a).  The financial impact described in section 7(a) need not be certain to occur, but only “reasonably foreseeable.”  See Commission Regulation 7001. 

If a substantial conflict under section 7(a) seems apparent then, in appropriate circumstances, the Commission must consider whether the "class exception" of section 7(b) applies.  Under the class exception, there is no prohibited, substantial conflict of interest if any benefit or detriment accrues to the public official, his family, employer or business associate:

as a member of a business, profession, occupation or group, or of any significant and definable class of persons within the business, profession, occupation or group, to no greater extent than any other similarly situated member of the business, profession, occupation or group, or of the significant and definable class of persons within the business, profession, occupation or group.

R.I. Gen. Laws § 36-14-7(b).

Under this exception, no substantial conflict exists where all members of an entire industry are impacted equally. See, e.g., A.O. 98-40 (opining that a member of the State House of Representatives who was the spouse of a dentist, could participate and vote on legislation relating to the practice of dentistry since the legislation at issue affects all dentists within Rhode Island to the same extent); A.O. 98-14 (opining that a member of the State House of Representatives who was the owner of a restaurant which serves alcohol, could vote on legislation relating to the legal alcohol limit since the legislation at issue affects all members of the restaurant, bar and hospitality industry to the same extent).

In the instant matter, the Petitioner seeks guidance as to his ability to participate and vote on matters that will apply to all members of two professions, professional engineers and professional land surveyors.  The Petitioner states that in Rhode Island there are approximately 3,800 licensed professional engineers, and nearly 200 licensed professional land surveyors.  The BRPE's determination relative to which tasks each profession is qualified and authorized to perform will impact the Petitioner to no greater or lesser extent than any other member of either of these professions.  For these reasons, the class exception found in section 7(b) clearly applies, and the Petitioner's personal interest in the Task List is not in substantial conflict with the proper discharge of his public duties on the BRPE.  Therefore, the Code of Ethics does not prohibit the Petitioner from participating in the BRPE's determination as to tasks that may or may not be performed by professional engineers and professional land surveyors.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-7(a)

36-14-7(b)

Commission Regulation 7001

Related Advisory Opinions:

2004-27

2003-57

2003-2

2002-5

99-63

98-84

98-59

98-40

98-14

Keywords:

Class Exception

Financial Interest

Private Employment

Business Interest

[1] For instance, the Task List noted that a property line survey could be performed by a land surveyor but not an engineer, that a drainage design could be performed by an engineer but not a land surveyor, but that either could perform a topographic survey.  See Memorandum re Civil Engineering/Land Surveying, from State Board of Registration for Professional Engineers and Land Surveyors (September 27, 1990).