Advisory Opinion No. 98-46

Re: Thomas Alan Buol

QUESTION PRESENTED

The Petitioner, a New Shoreham School Committee member, a municipal elected position, whose private employment is as a general contractor, requests an advisory opinion as to whether he may 1) submit a bid to the New Shoreham School Committee for an addition to their school and 2) participate in public discussions regarding such proposal.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a New Shoreham School Committee member, a municipal elected position, whose private employment is as a general contractor, may 1) submit a bid to the New Shoreham School Committee for an addition to their school, provided he does not participate in the bid development process, and the contract is awarded through an open and public bidding process and 2) participate in public discussions regarding such proposal as a private citizen.

The Petitioner advises that the New Shoreham School Committee expects to invite general contractors to respond to a Request for Proposal for an addition to their school. The School Committee has scheduled public sessions to discuss the proposed addition, its construction and costs. The Petitioner represents that citizens have asked him to opine on the proposal based on his experience as a general contractor. He also may submit a bid to act as general contractor for the project.

The Code of Ethics provides that a public official may enter into a contract with a municipality provided the contract has been awarded through an open and public process, including public notice and subsequent public disclosure of all proposals considered and contracts awarded. See R.I. Gen. Laws § 36-14-5(h). Therefore, the Petitioner may bid on the proposed addition so long as he has not participated in the bid development process as a member of the School Committee. The Commission previously has ruled that officials who participate in the bid development process place themselves in a privileged position with respect to other bidders and consequently diminish, if not eliminate, the "open and public process" required under the Code.

If the Petitioner bids or intends to bid on the proposal, he must recuse from participation as a member of the School Committee regarding all matters concerning the addition, including, but not limited to bid development, review of proposals and awarding of the contract. If the Petitioner bids but is not selected as the general contractor for the project, he may participate in matters concerning the contract either after it is awarded or after he is eliminated from consideration for the award, whichever comes first. However, if the Petitioner is successful, he must recuse prospectively on all matters regarding the addition. Finally, the Petitioner may participate in public discussions regarding the proposal as long as he is afforded no greater access to the forum due to his public position and does not participate in his official capacity as member of the School Committee.

Code Citations:

36-14-5(h)

36-14-7003

Related Advisory Opinions:

97-148

97-90

97-84

97-72

97-66

97-50

95-60

95-24

Keywords:

Contracts

Private employment

Public forum exception