Advisory Opinion No. 2011-10

Re: Kazem Farhoumand, PE

QUESTION PRESENTED

The Petitioner, a member of the Rhode Island Board of Registration for Professional Engineers, a state appointed position, who is also the Chief Engineer at the Rhode Island Department of Transportation (“RIDOT”), a state employee position, requests an advisory opinion as to whether he can participate in and vote on matters involving his RIDOT subordinates and coworkers who may come before the Board of Registration for Professional Engineers.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Rhode Island Board of Registration for Professional Engineers, a state appointed

position, who is also the Chief Engineer at the RIDOT, a state employee position, is not prohibited by the Code of Ethics from participating in matters before the Board of Registration for Professional Engineers that may involve his subordinates and coworkers.

The Petitioner is a member of the Rhode Island Board of Registration for Professional Engineers (“Board”). He represents that the Board oversees the testing and licensing procedures for Engineers in Training (“EIT”) and Professional Engineers (“PEs”). He also states that the Board will review petitions for comity from engineers registered in other states. He informs that the Board also conducts disciplinary actions where there are allegations of unethical or unprofessional conduct, which may result in suspension, refusal to renew, or revocation of registration certificates.

In his capacity as Chief Engineer of the RIDOT, the Petitioner represents that he supervises approximately 350 people, of which he estimates approximately 80 to 100 are registered PEs. The Petitioner states that it is not necessary for all engineers to be registered PEs and explains that there are some engineers at the RIDOT who are not PEs. The Petitioner represents that the RIDOT is the largest employer of civil engineers in Rhode Island, although it is not the largest employer of engineers in general.

With respect to his RIDOT subordinates and coworkers appearing before the Board, the Petitioner represents that he would not have any bias towards any RIDOT employee applying for EIT or PE registration, nor would he incur any direct or indirect financial impact. He further represents, however, that if his RIDOT superior appeared before the Board he would recuse from participating in and voting on his superior’s matter, be it registration or discipline. Regarding Board disciplinary actions relating to his subordinates and coworkers, the Petitioner states that he would recuse from participation and vote if he had taken part in a related disciplinary action at the RIDOT.

As such, the Petitioner seeks an advisory opinion as to whether he may, in his capacity as a Board member, participate in and vote on matters involving his subordinates and coworkers at the RIDOT.

A person subject to the Code of Ethics 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 in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the Petitioner has reason to believe or expect that he or any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). A public official or employee is also prohibited from accepting other employment that will either impair his independence of judgment as to his official duties or employment, or require him to disclose confidential information acquired by him in the course of his official duties. Section 36-14-5(b). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3).

In general, the Code of Ethics does not create an absolute bar to simultaneous service as an appointed member of the Board and as a RIDOT employee. Rather, the provisions above require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out an official’s or employee’s duty in the public interest. See A.O. 99-103 (opining that the petitioner, a member of the North Smithfield Planning Board and also a RIDOT employee, could participate in a matter where an applicant before the Planning Board was involved in matters with the RIDOT, provided that his independence of judgment was not impaired as to his public duties).

The Petitioner and his RIDOT coworkers are not “business associates” under the Code of Ethics. Accordingly, the Petitioner is not required to recuse from Board matters involving his coworkers merely because he is in a supervisory relationship with them at the RIDOT. Notwithstanding the absence of any business associate relationship with his RIDOT coworkers that would trigger the prohibitions of the Code of Ethics, the Petitioner is urged to consider whether a particular circumstance may lead to bias or an impairment of his independence of judgment as to his official duties. In such case, the Petitioner may seek further guidance from the Commission or exercise the recusal provision found at section 36-14-6.

Code Citations:

§ 36-14-2(3)

§ 36-14-5(a)

§ 36-14-5(b)

§ 36-14-6

§ 36-14-7(a)

Related Advisory Opinions:

A.O. 99-103

Keywords:

Recusal