Advisory Opinion No. 2011-39

Re: John J. Igliozzi, Esq.

QUESTION PRESENTED

The Petitioner, a member of the Providence City Council, a municipal elected position, who is also a member of the Providence Board of Contract and Supply, seeks an advisory opinion regarding whether he is permitted to participate in the Providence Board of Contract and Supply’s decision to rescind a contract awarded to So Fresh and So Clean, LLC, given that So Fresh and So Clean, LLC recently filed a lawsuit, relating to the contract up for rescission, naming all of the Providence City Council members as defendants, including the Petitioner, in their official capacities.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Providence City Council, a municipal elected position, who is also a member of the Providence Board of Contract and Supply, is not prohibited by the Code of Ethics from participating in the Providence Board of Contract and Supply’s decision to rescind a contract awarded to So Fresh and So Clean, LLC, notwithstanding the fact that So Fresh and So Clean, LLC has filed a lawsuit naming all of the Providence City Council members as defendants, including the Petitioner, in their official capacities.

The Petitioner is a member of the Providence City Council (“Council”). He advises that due to his status as the Chair of the Council’s finance committee, he is an ex officio member of the Providence Board of Contract and Supply (“Board”). He informs that the Board is a municipal entity, comprised of City officials serving as ex officio members, established by the City Charter “[t]o make all contracts for the purchase of materials, supplies, services, equipment and property on behalf of the city” that exceed five thousand dollars ($5,000). City Charter Art. X § 1007.

The Petitioner represents that in the spring of 2011 the Board solicited bids for the washing of Providence Police Department (“Police Department”) vehicles, later opening the bids received on May 9, 2011. He advises that on June 6, 2011, the Board awarded the Police Department vehicle washing contract to So Fresh and So Clean, LLC (“SFSC”). Thereafter, he informs that in response to concerns raised by the Police Department regarding SFSC, the Board placed an item on its agenda to rescind the contract awarded to SFSC. He further states that the Police Department never sent any vehicles to SFSC to be washed pursuant to this contract. The Petitioner advises that SFSC has since filed a lawsuit naming all of the Council members and other City officials as defendants solely in their official capacities. The Petitioner represents that he has recused from any Board agenda items seeking to rescind SFSC’s contract until he receives advice from the Ethics Commission. Based on the above representations, the Petitioner asks whether he can participate in the Board’s decision to rescind the City’s contract with SFSC, given that he is named as a defendant in his official capacity in SFSC’s lawsuit against the City regarding breach of the same contract up for rescission before the Board.

Pursuant to 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). An official will have an interest in substantial conflict with his official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by reason of his official activity, to the official, a family member, a business associate, an employer or any business which the public official represents. Section 36-14-7(a). Furthermore, a public official may not use his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, his family members, his employer or any business associate. Section 36-14-5(d).

It is well-settled that “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office.” Andrade v. Perry, 863 A.2d 1272, 1278 (R.I. 2004) (quoting Capital Properties, Inc. v. State, 749 A.2d 1069, 1081 (R.I. 1999) (quoting Will v. Michigan, 491 U.S. 58, 71 (1989))). “Therefore, capacity is critical to the damage award because in an official-capacity suit damages are limited by the Government[al] Tort Liability Act . . . .” Andrade, 863 A.2d at 1278 (quoting Feeney v. Napolitano, 825 A.2d 1, 4 (R.I. 2003)).

In the present matter, the Petitioner cannot be individually liable for damages in SFSC’s lawsuit because he is named solely in his official capacity as Council member. Absent an independent relational or financial nexus between the Petitioner and SFSC, the fact that the Petitioner is named as a defendant in his official capacity in SFSC’s lawsuit is not in substantial conflict with his official duties as a Board member, because his official activity will not result in a direct monetary gain or loss for himself. Contra A.O. 99-31 (finding that a Smithfield Town Councilor could not participate in the Council’s consideration of a lawsuit filed by residents of a subdivision where the Councilor previously had been part of the suit, because any action by the Council may have a financial impact upon him as a current resident of the subdivision). Accordingly, it is the opinion of the Ethics Commission that the Petitioner may participate in the Board’s decision whether to rescind the contract awarded to SFSC, notwithstanding the fact that SFSC has name him as a defendant, in his official capacity as a Council member, in a lawsuit involving the same contract up for rescission.

Code Citations:

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-7(a)

Related Advisory Opinions:

A.O. 99-31

Other Relevant Authority:

Will v. Michigan, 491 U.S. 58, 71 (1989)

Andrade v. Perry, 863 A.2d 1272 (R.I. 2004)

Feeney v. Napolitano, 825 A.2d 1 (R.I. 2003)

Capital Properties, Inc. v. State, 749 A.2d 1069 (R.I. 1999)

Keywords:

Litigation