Advisory Opinion No. 2011-48

Re: Anthony Ricci

QUESTION PRESENTED

The Petitioner, the Chief Rider Coach Trainer for the Motorcycle Safety Program at the Community College of Rhode Island (“CCRI”), a state employee position, requests an advisory opinion regarding whether his private business may enter into a driver retraining contract with CCRI, for which his business was the sole responsive bidder, given that he is a CCRI employee.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner’s private business is not prohibited by the Code of Ethics from accepting and performing a driver retraining contract for CCRI, for which his business was the sole responsive bidder, notwithstanding the fact that he is a CCRI employee.

The Petitioner is a part-time employee at CCRI, working as the Chief Rider Coach Trainer for the Motorcycle Safety Program. He informs that the Motorcycle Safety Program falls under the direction of CCRI’s Center for Workforce and Community Education Department. In his private capacity, the Petitioner represents that for the past twelve (12) years he has been the president and owner of Advanced Driving & Security Inc. (“ADSI”), which specializes in advanced automobile driver training for government, military, and corporations. He informs that ADSI also operates a local driving school, namely Advanced Driver Training.

The Petitioner represents that in the winter of 2011, his supervisor at CCRI asked him to provide information to an ad hoc Driver Retraining Committee (“Committee”) formed to create a curriculum for a Driver Retraining Program. He informs that he attended two (2) meetings in February and March where he provided information based on his experience as a driving instructor relating to ways in which the behavior of repeat offenders may be changed. He represents that other professionals, such as a psychologist and a nurse, also provided information to the Committee. He states that he had no decision making power as to the creation of the Driver Retraining Program curriculum. He also advises that although the Driver Retraining Program is run by CCRI’s Center for Workforce and Community Education Department, the Committee’s work was completely unrelated to the Motorcycle Safety Program.

The Petitioner advises that during August of 2011, CCRI published a Request for Qualifications (“RFQ”) seeking proposals from private vendors to perform the driving instruction portion of the Driver Retraining Program. The Driver Retraining Program is a court ordered sixty (60) hour course for people convicted of moving violations on four (4) distinct occasions within an eighteen (18) month period. R.I. Gen. Laws § 31-27-24. He represents that ADSI responded to the public bid and was the sole responsive bidder. He informs that at the time he provided information to the Committee, he was unaware that it would result in the posting of a public bid for driver instruction. He further advises that he did not participate in the bid specification process and was not aware of the existence of the RFQ until he found it on the state purchasing website while looking for another RFQ from a different agency.

The Petitioner informs that after CCRI awarded the contract to ADSI, he was asked to contact the Ethics Commission in order to determine if it was a conflict of interest for ADSI to perform this contract. Based upon the above representations, the Petitioner seeks advice as to whether the Code of Ethics prohibits ADSI from performing the Driver Retraining Program contract for CCRI, given that the Petitioner is a principal of ADSI and an employee of CCRI.

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). Additionally, the Code prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any person by which he is employed or whom he represents. Section 36-14-5(d). Finally, a public official may not enter into a contract with a state or municipal agency unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. Section 36-14-5(h).

The Commission has previously advised public employees and officials seeking to contract with or provide services to the state or a municipality that they could only do so if the public entity used an open and competitive bidding process, pursuant to section 5(h). See A.O. 2008-14 (opining that the Chairperson of the Coventry Planning Commission may respond to an RFQ to perform municipal engineering services for the Town, provided that he did not participate in the bid specification process and that any contract awarded is pursuant to an open and public bidding process); A.O. 2002-20 (opining that a member of the Lincoln Parks and Recreation Commission could respond to an RFP published by any state or municipal agency, including the Town of Lincoln, provided that (1) he did not participate in the bid specification process for the RFP in contracts involving the Town of Lincoln; and (2) any contract was awarded pursuant to an open and public bidding process).

Additionally, the Commission has previously found that public officials who participate in the bid development process for a public entity place themselves, their family members and their business associates in a privileged position with respect to other bidders. By so doing they contravene the “open and public process” required under the Code. See A.O. 2009-22 (opining that a member of the New Shoreham Electric Utility Generation Task Group was prohibited from submitting bids in response to RFPs regarding renewable energy technology issued by New Shoreham because he was the primary author of the RFPs); A.O. 2003-5 (opining that a member of the Cumberland School Committee may only submit a bid to provide private fundraising services to the school district if he has not participated in or otherwise influenced the bid development process).

In the present matter, the Petitioner responded to a bid posted by CCRI through an open and competitive bidding process. The Petitioner represents that he did not participate in the bid development process for the RFQ and had no advanced knowledge that the RFQ was posted until he inadvertently found it on the state’s website. Based upon the Petitioner’s representations, we conclude that his previous participation before the Committee, approximately five (5) months prior to the posting of the RFQ, is too attenuated to be considered participation in the bid specification process. Accordingly, it is the opinion of the Ethics Commission that ADSI may perform the Driver Retraining Program contract for CCRI, notwithstanding that the Petitioner is a principal of ADSI and also an employee of CCRI.

Finally, this advisory opinion only considers the application of the Code of Ethics and provides no opinion as to whether the performance of this contract is permissible under the policies of CCRI, the Division of Purchasing, or pursuant to any other policy, statute, rule or regulation.

Code Citations:

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-5(h)

§ 36-14-7(a)

Related Advisory Opinions:

A.O. 2009-22

A.O. 2008-14

A.O. 2004-3

A.O. 2003-5

A.O. 2002-20

Keywords:

Contracts