Advisory Opinion No. 96-83

Re: John J. Manning, P.E.

A. QUESTIONS PRESENTED

Whether and to what extent the duties of a Principal Sanitary Engineer with the Rhode Island Department of Environmental Management (DEM), Division of Water Resources, a state employee, are affected by Code of Ethics considerations if his spouse 1) bids on work offered by the state's Clean Water Finance Agency, 2) seeks certification as a Minority and Women Owned Business Enterprise (MBE/WBE) under state law, and/or 3) obtains MBE/WBE funding through the State Revolving Fund (SRF), all in light of the fact that the engineer's principal duties with the DEM involve managing the day-to-day operations of the State Revolving Fund (SRF), a low interest loan program that finances water pollution abatement projects and other grant programs, and monitoring compliance by state-financed programs with MBE/WBE requirements.

B. SUMMARY

The Petitioner's advisory opinion request raises three questions. With respect to the first two questions, the petitioner, a state employee, has no involvement with the award process run by the Clean Water Finance Agency. In addition, any award that his spouse might obtain through the agency would only be gotten through an open and public bidding process. See R. I. Gen. Laws 36-14-5(h). Also, with respect to the Minority and Women Owned Business Enterprise (MBE/WBE) certification, the petitioner has no involvement with the application process for that designation. Therefore, no potential exists for official action on his part in either of these instances that might in any way implicate provisions of the Code of Ethics.

Assuming, however, that the petitioner's spouse receives an award through the Clean Water Finance Agency, the Code of Ethics clearly precludes the petitioner from reviewing or, in any other way, overseeing work done by his spouse on a public contract. That prohibition does not extend, however, to other employees in his office. See, e.g., R.I. Gen. Laws 36-14-5(e)(1). The petitioner advises that other Department of Environmental Management (DEM) employees, who are not subject to the petitioner's supervision or control, are available to review work that might come to the Division of Water Resources' State Revolving Fund (SRF) office having been completed by the petitioner's wife. In effect, by simply declining to participate in the review of his spouse's work the petitioner will have recused himself from any official action that might otherwise have implicated provisions of the Code of Ethics. See R.I. Gen. Laws 36-14-6.

C. DISCUSSION

1. Facts

John Manning is a Principal Sanitary Engineer with the Rhode Island Department of Environmental Management (DEM), Division of Water Resources. His principal duties with the DEM involve managing the day-to-day operations of the State Revolving Fund (SRF), a low interest loan program that finances water pollution abatement projects and other grant programs, and monitoring compliance by state-financed programs with MBE/WBE requirements. In that capacity he has daily contact with the state's Clean Water Finance Agency, the DEM's partner in the loan programs, but has no involvement with the operation or administrative decisions made by the Finance Agency. His monitoring of MBE/WBE compliance requires that he, as well as other employees in his department, review the work done by contractors/vendors participating in programs funded by the SRF and the Finance Agency.

Mr. Manning's wife is a self-employed graphic designer. She contemplates applying with the state for certification as an MBE/WBE contractor/vendor. She also expects to submit bids on projects funded by the Clean Water Finance Agency.

2. Analysis

The Petitioner's advisory opinion request raises three questions, two of which are answered easily, while the answer to the third, as discussed below, requires that the petitioner insulate himself from matters involving projects that might involve his spouse if and when such matters come before the Division of Water Resources at the DEM.

As to the first two questions, the petitioner has no involvement with the award process run by the Clean Water Finance Agency. In addition, any award that his spouse might obtain through the agency would only be gotten through an open and public bidding process. See R. I. Gen. Laws 36-14-5(h). Under the provisions of section 5(h) a state official or employee, or a member of his family, may enter into a contract with a state agency provided that "the contract has been awarded through an open and public process." Also, with respect to the MBE/WBE certification, the petitioner has no involvement with the application process for that designation and, therefore, no potential exists for official action on his part that might in any way impact the process.

Assuming, however, that the petitioner's spouse receives an award through the Clean Water Finance Agency, there then exists the potential for the petitioner's public responsibilities to intersect with his wife's private employment. The petitioner has advised the Commission that his duties with the DEM principally involve the day-to-day operations of the SRF. While those responsibilities do not involve the petitioner with making awards to contractor/vendors, it does involve him with oversight responsibilities once a contractor/vendor receives an award. For example, upon completion of part or all of a project a contractor/vendor likely would submit the product of their efforts to, among others, the Division of Water Resources' SRF office to ensure compliance with applicable policies and regulations. The petitioner is one of the DEM employees who has the responsibility for such reviews.

Clearly the Code of Ethics precludes the petitioner from reviewing or, in any other way, overseeing work done by his spouse on a public contract. That prohibition does not extend, however, to other employees in his office. See, e.g., R.I. Gen. Laws 36-14-5(e)(1). The petitioner advises that other DEM employees, who are not subject to the petitioner's supervision or control, are available to review work that might come to the Division of Water Resources' SRF office having been completed by the petitioner's wife. In effect, by simply declining to participate in the review of his spouse's work the petitioner will have recused himself from any official action that might otherwise have implicated provisions of the Code of Ethics. See R.I. Gen. Laws 36-14-6.

Code Citations:

36-14-6

36-14-5(e)(1)

36-14-5(h)

Keywords:

family: business interest

family: supervision

grants