Advisory Opinion No. 2012-11 Advisory Opinion No. 2012-11 Re: David B. Patten QUESTION PRESENTED: The Petitioner, a member of the Westerly School Committee, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits his employer, Collaborative Partners, from bidding on and accepting a contract to provide consulting services to the Westerly School Department relative to an Elementary School Facilities Needs Assessment. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner’s employer, Collaborative Partners, from bidding on and accepting a contract to provide consulting services to the Westerly School Department relative to an Elementary School Facilities Needs Assessment. The Petitioner was elected to serve as a member of the Westerly School Committee in November 2008 and, at present, serves as Committee Chair. Beginning in October 2011, he also became employed by Collaborative Partners, a real estate consulting and capital project management service firm based in Boston, Massachusetts. The Petitioner represents that, in his position as a Principal Consultant, he is primarily involved in business development within the life sciences industry providing real estate consulting and project management in different areas of the health care market. The Petitioner reports that, on or about April 2, 2012, the Westerly School Department advertised an invitation for proposals seeking an Elementary School Facilities Needs Assessment. He reports that as a member of the School Committee, he did not participate in the preparation of the request for proposals. The Petitioner’s employer, Collaborative Partners, performs this type of work and would like to submit a response to the request for proposals. The Petitioner reports that, pursuant to the request for proposals, all responses are received by the School Finance Department. The Petitioner also reports that the Finance Department reviews all of the bids submitted and thereafter makes a recommendation to the Superintendant of Schools, who in turn will make a recommendation to the Westerly School Committee for a discussion and vote. The Petitioner reports that it is his understanding that the performance of the contract is overseen by the School Finance Director and/or the Superintendant of Schools and not by the School Committee. The Petitioner reports that, as part of his employment duties at Collaborative Partners, he will not participate in the preparation of the bid being submitted on behalf of his employer. Also, he will not participate in the performance of the contract in the event that his employer is the successful bidder. The Petitioner states that it is his intention to recuse from all discussion and vote by the Westerly School Committee relative to the consideration of bids for the Elementary School Facilities Needs Assessment, as well as any other matters which may come before the School Committee relative to the Petitioner’s employer. Under the Code of Ethics, a public official must recuse himself from participation when the official’s employer, or the interests of his employer, appear before his agency. Commission Regulation 36-14-5002(2) and (3); R.I. Gen. Laws § 36-14-5(f). Also, a public official shall 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 and 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 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 of Ethics 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 other person by which he is employed or which he represents. Section 36-14-5(d). Finally, a public official may not represent another person or entity before a municipal agency of which he is a member during his service and for one (1) year thereafter. R.I. Gen. Laws § 36-14-5(e). The Ethics Commission has previously advised public officials to recuse from participation in any matter before his agency in which his employer appears, or which involve the interests of his employer. See A.O. 2011-47 (opining that a member of the Rhode Island Board of Governors for Higher Education must recuse from discussion and voting relative to contract negotiations involving his employer); A.O. 2009-1 (opining that a member of the Scituate Town Council must recuse from matters before the Town Council concerning school related issues involving the interests of his employer which provides busing services to the Scituate School Department). Previous advisory opinions have also advised that the strict provisions of Section 5(e) prohibit a public official from representing another person or entity before his agency. See A.O. 2010-37 (opining that a Vice Chair of the East Bay Energy Consortium was prohibited in his employment as a consultant from representing himself or any other person or entity before his agency for the period of one year following his severance from service); A.O. 2008-46 (opining that the Deputy Chief of Urban and Community Forestry, a sub-division of the Rhode Island Department of Environmental Management, was prohibited from accepting private employment in a position that would require him to represent himself and others before his former agency). In the instant matter, given that the Petitioner had no role in the preparation of the invitation for proposals, the Code of Ethics does not prohibit the Petitioner’s employer, Collaborative Partners, from submitting a bid and accepting a contract with the Westerly School Department. However, as a member of the School Committee, the Petitioner must recuse from all matters pertaining to his employer, including the bid selection process and performance of the contract in the event that his employer is selected as the successful bidder. Further, the Petitioner must recuse whenever a representative of his private employer appears before the School Committee. Finally, as a member of the School Committee and an employee of Collaborative Partners, the Petitioner is prohibited by the Code of Ethics from representing his private employer before the School Committee on any matter during his service and for one year thereafter. This advisory opinion only considers the application of the Code of Ethics and does not address the application of any municipal charter or ordinance, or any other policy, statute, rule or regulation. Notices of recusal must be filed in accordance with R.I. Gen. Laws § 36-14-6. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-5(e) § 36-14-5(f) § 36-14-7(a) Commission Regulation 36-14-5002(2) and (3) Related Advisory Opinions: A.O. 2011-47 A.O. 2010-37 A.O. 2009-1 A.O. 2008-46 Keywords: Private Employment Recusal Revolving Door