Advisory Opinion No. 2011-1

Re: John Spier

QUESTION PRESENTED

The Petitioner, a member of the Block Island Housing Board, a municipal elected position, who in his private capacity is a general contractor engaged in residential construction, requests an advisory opinion concerning his ability to participate in general Housing Board discussions and voting concerning construction projects.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Block Island Housing Board, a municipal elected position, may participate in general Housing Board discussions and voting concerning construction projects, provided that neither he nor any family member, business associate or employee will be financially impacted thereby.

The Petitioner is a recently elected member of the Block Island Housing Board ("Housing Board"). The general purpose of the Housing Board is to provide affordable housing opportunities for year-round residents of New Shoreham by, among other things, purchasing, developing and managing lands throughout Block Island for the purpose of providing affordable, resale-restricted housing for low-income and moderate-income buyers.

In his private capacity, the Petitioner is a registered general contractor involved primarily in the renovation of single-family homes on Block Island. The Petitioner notes that there is a limited pool of contractors and subcontractors (hereinafter collectively, "contractors") on Block Island, some of which he may at times be working with or competing against for business. For that reason, the Petitioner states that he will recuse from any Housing Board discussions or voting involving any specific contractors who are seeking or working on Housing Board projects. Such matters would include, but not necessarily be limited to, reviewing bid proposals, selecting contractors, awarding and administering contracts, approving work, and discussing legal actions.

Notwithstanding his recusal on Housing Board matters relating to specific contractors, the Petitioner asks whether the Code of Ethics prohibits his participation in the Housing Board's more general decision-making as to the construction and development of affordable housing. Such general decision-making involves issues surrounding design development, scheduling and construction programming, developing bid specifications, selecting materials, specifying mechanical and structural systems, and engineering.

Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A public official will have an interest in substantial conflict with his official duties if he has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the official’s activity, to himself, a family member, a business associate, or any business by which the official is employed or represents. Section 36-14-7(a). The Code further prohibits an official from using his public office or confidential information received though his holding public office to obtain financial gain, other than that provided by law, for himself or any person within his family, any business associate or any business by which he is employed or represents. Section 36-14-5(d).

The above Code provisions would prohibit the Petitioner from participating in any Housing Board decisions that are likely to financially impact himself or any other contractor with which he has formed a business association. Furthermore, we have previously opined that public officials must recuse from participating in matters involving their direct competitors when it is likely that such matters will have a corresponding financial impact on the business of the participating official. See A.O. 2004-38 (Member of New Shoreham Town Council, who is employed at a restaurant holding a Class B liquor license, may not participate in the Council's review of liquor license applications that involve his employer's direct competitors, as such decisions are likely to also have a financial impact upon the petitioner's employer).

The instant Petitioner has addressed these concerns by stating that, out of an abundance of caution and to avoid the appearance of impropriety in his small community, he will recuse from Housing Board decision-making that directly involves or impacts any particular New Shoreham contractor regardless of whether such contractor is his business associate or direct competitor. Notice of recusal must be filed with the Ethics Commission pursuant to section 36-14-6. As to the Housing Board's more general decision-making discussed above, not involving any particular contractor, the Petitioner may participate provided that neither he nor any family member, business associate or employee will be financially impacted. This determination cannot be made in advance, but must occur on a case-by-case basis depending upon the circumstances. Accordingly, the Petitioner is encouraged to seek further guidance from the Ethics Commission as needed.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-6

36-14-7(a)

36-14-7001

Related Advisory Opinions:

2004-38

Keywords:

Competitors