Advisory Opinion No. 2011-2

Re: Brenden T. Oates

QUESTION PRESENTED

The Petitioner, a member of the Smithfield School Committee, a municipal elected official, requests an advisory opinion as to whether he may participate in the review of bids for a construction contract with the Smithfield School Department given that his mother is currently a part-time secretary at one of the architectural firms that made a bid for the project.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a member of the Smithfield School Committee, a municipal elected official, from participating in the review of bids for a construction contract with the Smithfield School Department, notwithstanding the fact that his mother is currently a part-time secretary at one of the architectural firms that made a bid for the project.

The Petitioner is a member of the Smithfield School Committee (“School Committee”). The Petitioner represents that the Smithfield School Department (“School Department”) put out an invitation to bid for the design and construction of a greenhouse at Smithfield High School and the replacement of windows at an elementary school. He informs that the Superintendant has received the bids, but notes that the School Committee has yet to review them.

The Petitioner advises that the architectural firm of Saccoccio & Associates has submitted a bid for this construction project. The Petitioner further represents that his mother is a part-time secretary at Saccoccio & Associates, that she holds no equity or ownership interest in the firm, and that her employment will be in no way impacted by the firm’s success or failure in securing the subject work for the School Department. Additionally, he informs that his mother has worked at Saccoccio & Associates for approximately nine (9) years. Accordingly, the Petitioner seeks guidance as to whether the Code of Ethics requires him to recuse from any School Committee discussions on whether to award the bid to Saccoccio & Associates.

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 substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, a business associate or an employer 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 may not use his office for pecuniary gain, other than as provided by law, for himself, a family member, employer, business associate, or a business that he represents. Section 36-14-5(d). A “business associate” is defined as any individual or business entity joined together with a public official “to achieve a common financial objective.” Section 36-14-2(3).

This Commission has previously opined that a public official is not required to recuse from matters that may cause a financial impact upon his family member's employer or business associate, as long as there is no corresponding financial impact upon the family member. See A.O. 2008-69 (opining that a member of the Woonsocket Zoning Board of review may discuss and vote on a petition for a variance brought by CVS even though his sister was employed as an accounting analyst with CVS); A.O. 2008-60 (opining that a member of the Woonsocket Zoning Board of Review may participate in discussing and voting on a petition for a variance brought by CVS, notwithstanding the fact that the petitioner’s son and nephew are employed in the shipping department of CVS); A.O. 1999-28 (opining that a member of the Westerly Zoning Board of Review was not prohibited from participating in the review of an application for a special use permit to construct a drive-thru, notwithstanding the fact that the applicant employed the

Petitioner’s spouse, because the Petitioner’s relationship with the applicant was too remote to implicate the prohibitions set forth in the Code, and there was no evidence that the construction of the drive-thru would impact his spouse’s employment).

Consistent with the above cited advisory opinions, in the facts as represented by this Petitioner there is nothing to indicate that it is reasonably foreseeable that the Petitioner’s involvement in the construction bid discussions before the School Committee will have a financial impact upon his mother as a part-time secretary at Saccoccio & Associates. Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not required to recuse from participating in the review of bids for a construction contract with the Smithfield School Department, notwithstanding the fact that his mother is currently a part-time secretary at one of the architectural firms that made a bid for the project.

Code Citations:

§ 36-14-2(3)

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-5(f)

§ 36-14-7(a)

Related Advisory Opinions:

A.O. 2008-69

A.O. 2008-60

A.O. 1999-28

Keywords:

Business Associate

Financial Interest