Advisory Opinion No. 2015-40

Rhode Island Ethics Commission 

Advisory Opinion No. 2015-40

Approved:  September 22, 2015

Re:  Samuel Bird, RA 

QUESTION PRESENTED:

The Petitioner, a member of the New Shoreham Planning Board, a municipal appointed position, who also served on the Large Capital Asset Strategy Committee, a subcommittee of the Planning Board, requests an advisory opinion regarding whether the Code of Ethics prohibits him from accepting employment with the Town of New Shoreham as its Facilities Manager. 

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the New Shoreham Planning Board, a municipal appointed position, who also served on the Large Capital Asset Strategy Committee, a subcommittee of the Planning Board, is not prohibited by the Code of Ethics from accepting employment with the Town of New Shoreham as its Facilities Manager. 

The Petitioner is a member of the New Shoreham Planning Board (“Planning Board”), having served since his appointment by the New Shoreham Town Council (“Town Council”) in June 2011.  He states that he was also a member of the Planning Board’s subcommittee, the Large Capital Asset Strategy Committee (“LCAS”) from its inception in May 2014 until he resigned from the LCAS on June 22, 2015.[1] 

In his private capacity, the Petitioner is a registered architect who, after a long career in the Boston area, is now spending more time in the Town of New Shoreham (“Town”).  He states that he is almost finished building a house in the Town and would like to make it his permanent residence if he can find employment on the island.  Therefore, after much consideration, he informs that he applied for the position of the Town’s Facilities Manager, which was posted on June 11, 2015.  The Petitioner states that he interviewed for the job on August 3, 2015, and was offered the position by the Town Manager on August 19, 2015.  However, given that the LCAS had a role in identifying the need to fill the vacant position and made recommendations to the Town Council relative to the job description, the Petitioner advised the Town Manager that he was not comfortable accepting the position unless he received a favorable advisory opinion from the Ethics Commission. 

What follows is a recitation of the facts that led to the Town’s posting of the vacancy notice for the Facilities Manager position. 

The Petitioner represents that on November 2, 2010, prior to his appointment to the Planning Board and the LCAS, the Town’s voters approved amendments to the Home Rule Charter of New Shoreham (“Charter”) which would become effective on January 3, 2011.  In particular, a provision for the position of “Facilities Manager” was added to Charter § 801, entitled “Department of Public Works.”  It provides: 

D.    Facilities Manager. There may be a Facilities Manager, appointed by the Town Manager with the consent of the Town Council, whose duties shall be the ongoing management of all buildings, equipment and other facilities owned by the Town, with special attention to maintenance and repair of said facilities. These duties may include, without limitation and as assigned by the Town Manager, the following:

a)      Performing routine maintenance tasks on all Town buildings and equipment as required;

b)      Maintaining an inventory for all Town buildings and equipment;

c)      Collecting and maintaining operating manuals, parts lists, maintenance schedules and replaceables for all Town machinery and equipment;

d)     Acquiring sufficient tools and spare parts necessary for normal preventive maintenance as well as emergency repairs;

e)      Being available for emergencies, coordinating independent contractors when necessary; and

f)       Providing the Town Manager with estimates of maintenance expenses for annual budget submission.

              The Facilities Manager shall report directly to the Public Works Director.

Charter § 801(D). 

The Petitioner states that the LCAS, from June 2014 through October 2014, met frequently to review town facilities, visit buildings, and consult with residents and Town departments.  He states that by November 2014, the LCAS had identified the need for a Town employee responsible for managing the Town’s capital assets (such as its buildings, land, roads, infrastructure and equipment).  He represents that the LCAS recognized that the long-vacant position of Facilities Manager, set forth in § 801(D) of the Charter, could be filled to relieve the Town Manager of the burden of the day-to-day management of the Town’s assets.[2] 

During the winter of 2015, the Petitioner represents that the job description for what would become the position of Facilities Manager continued to evolve.  He states that at the February 18, 2015 Town Council meeting, the Town Council was presented with and discussed two draft job descriptions for the Facilities Manager position:  a draft from the LCAS, which was not prepared by the Petitioner;[3] and a draft prepared by Town Council First Warden Kenneth C. LaCoste.[4]  The Petitioner informs that both he and fellow LCAS board member Sven Risom attended this Town Council meeting.

The Petitioner represents that over the next two months the Town Council, in the course of several budget work sessions, received input from the public and Town departments regarding the Facilities Manager position.  He informs that by its March 18, 2015 meeting, a majority of the Town Council thought that the job of Facilities Manager was needed in the Town and should be a full-time position with 30% of the time dedicated to the school department.  See Town Council Minutes March 18, 2015.   He states that on April 15, 2015, the Town Council approved the budget for Fiscal Year (“FY”) 2016, which included funding for the Facilities Manager position. 

Subsequently, the Petitioner states that on May 4, 2015, the Town held its annual Financial Town Meeting in which voters reviewed and discussed items within the Town’s proposed budget for FY2016, including a full copy of the Facilities Manager job description.  He states that there was specific discussion of the duties and funding for this new position at the Financial Town Meeting, which concluded with the voters approving the FY2016 budget that included a line item for the Facilities Manager position.  The Petitioner represents that, at its May 20, 2015 meeting, the Town Council further edited the Facilities Manager job description and approved a hiring process to be led by the Town Manager.  See Town Council Minutes, May 20, 2015. 

The Petitioner informs that the Town posted the following vacancy notice for the Facilities Manager position on June 11, 2015, and it was published in the Block Island Times on June 12, 2015:    

Facilities Manager                               Reports to the Director of Public Works

40 hours per week                               Family Benefits

(Grade G) Union Position                   Salary:  $41,553.56-$62,330.39

 The Facilities Manager shall focus on the management, repair and maintenance of all town buildings and other large town assets. The work requires considerable independent judgment in the application of thorough technical knowledge and administrative skills. The position will spend approximately 25-33% of their time regarding the school in identifying, assessing, implementing and leading major maintenance and upgrade projects and planning long-term solutions for programmatic needs. The focus of this position is not predominantly hands on programs. The position will report to the Public Works Director and may include, without limitation, the following:

  • Manage the planning, construction, coordination, engineering and maintenance to preserve and improve the Town of New Shoreham’s buildings and large assets
  • Establish, manage and coordinate contracts and the bid process properly for all town buildings and other town owned facilities
  • Have the ability to handle small maintenance projects but not be the primary “hands-on-person” to address maintenance and construction needs
  • Create management schedules for each property including depreciation, life cycles, maintenance schedules, guarantee expirations, and whatever else is necessary for proper management of those properties
  • Ensure the management of routine and preventative maintenance contracts and inventory of suppliers, services, spare parts and back-up systems for all service providers regarding town buildings and other town owned facilities
  • Interface regularly with department managers to address town buildings and large assets as well as The Planning Board/LCAS to address long range large capital planning
  • Inform and engage the public regarding existing and future buildings and asset plans
  • Incorporate sound sustainability and energy conservation and efficiency principals into the town’s capital assets and infrastructure
  • Interface with the Finance Director to establish funding solutions for future potential projects and to develop short and long term capital and asset budget recommendations for the Director of Public Works
  • Engage and interface in the planning and coordination of projects performed by outside entities (e.g., Army Corps of Engineers, Block Island Power Co., U.S. Coast Guard, Deep Wind, etc.)
  • Desired Background/Experience
  • Experience working with a town or public asset engaged in planning, maintenance and/or construction of town assets and capital
  • Experience working with a Finance Director and discussing financial issues and public funding solutions. Experience with Private Public Partnerships (PPP) is highly desired
  • Experience working with engineers, architects, construction contractors and technical suppliers to address management and maintenance issues
  • Ability to handle increased responsibilities through promotion with the potential to become the Director of Public Works in the future 
  • Computer and basic technology skills
  • Experience in a building trade
  • College degree desired

Position available July 1, 2015.

Applications available at the Town Hall or www.new-shoreham.com/employment.cfm.   Applications due back to the Town Manager by 2:00 pm on June 26 2015.   WE ARE AN EQUAL OPPORTUNITY EMPLOYER

The Petitioner represents that on June 22, 2015, he discussed applying for the Facilities Manager position with the Town Manager, who concurred with his decision to resign from the LCAS, which the Petitioner did that same day.  He represents that he submitted an application to the Town for the Facilities Manager position on June 24, 2015.  He states that he interviewed for the position on August 3, 2015, with the Facilities Manager Search Committee and the Town Manager.[5]  He represents that he was offered the position by the Town Manager on August 19, 2015. 

Cognizant of the Code of Ethics, the Petitioner asserts that his participation as an LCAS member relative to the Facilities Manager job description was preliminary, purely advisory to the Town Council, and without any authority to decide to fill the position, approve a job description or allocate funding.  The Petitioner states that, although the LCAS made initial recommendations to the Town Council regarding the Facilities Manager position, the LCAS was merely working from an existing job description that was added to the Charter in 2010 and the idea of filling the position had been considered by the Town Council in January 2014, prior to the formation of the LCAS.  He further states that, given the Town’s isolation on an island, the final job description was drafted to be intentionally broad and unrestrictive to allow for a broad array of candidates from the Town’s small workforce pool. 

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 business by which he is employed or which he represents.  Section 36-14-5(d).

Here, the issue is whether the Petitioner’s participation, as a member of the LCAS, in discussions regarding the position of Facilities Manager and in subsequent recommendations to the Town Council constituted official actions that placed the Petitioner in a privileged position when applying for the vacancy. 

In an analogous context, the Commission has previously found that public officials who participate in the bid development process for requests for proposals (“RFPs”) and requests for qualifications (“RFQs”) on behalf of a public entity place themselves, their family members and their business associates in a privileged position with respect to other bidders, and by so doing, contravene the “open and public process” required under the Code.  See section 36-14-5(h) (prohibiting a person subject to the Code of Ethics from entering 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).  See, e.g., A.O. 2009-22 (opining that a member of the New Shoreham Electric Utility Generation Task Group was prohibited by the Code of Ethics from submitting bids in response to RFPs regarding renewable energy technology issued by the Town, given that he was the primary author of the RFPs). 

However, where the public official or employee has some connection to the bid or job specification process, but that connection is too attenuated or cleansed by intervening actions, the Commission has found there to be no conflict.  For example, in Advisory Opinion 2011-48, the Chief Rider Coach Trainer for the Motorcycle Safety Program at the Community College of Rhode Island (“CCRI”) sought guidance as to whether he was prohibited by the Code of Ethics from accepting and performing a driver retraining contract for CCRI, for which his private business was the sole responsive bidder, given that he was a CCRI employee.  Similar to the instant matter, that petitioner had previously provided information to an ad hoc Driver Retraining Committee (“Committee”) at CCRI, which was formed to create a curriculum for a driver retraining program.  There, the petitioner represented that he had attended two Committee meetings and provided information based upon his experience as a driving instructor, but he had no decision-making authority relative to the creation of the Driver Retraining Program curriculum.  Additionally, the petitioner made the following representations: he responded to an open and public bidding process; he did not participate in the bid development process; and he had no advance knowledge of the bid until he found it on the state’s website.  Accordingly, the Commission concluded that the petitioner’s previous participation before the Committee, approximately five months before the posting of the bid, was too attenuated to be considered participation in the bid specification process.  Therefore, the Commission opined that the petitioner was not prohibited by the Code of Ethics from accepting and performing the contract for CCRI.  See also 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); A.O. 2002-20 (opining that a Lincoln Parks and Recreation Commission member was not prohibited from responding to an RFP published by any state or municipal entity, including the Town of Lincoln, provided that he did not participate in the bid specification process for the RFP in contracts involving the Town of Lincoln). 

In the present matter, the Petitioner responded to the Town’s public posting of a vacancy notice for the position of Facilities Manager.  He was a member of the LCAS, an advisory committee to the Town Council, which made recommendations to the Town Council to fill the pre-existing, but vacant, position of Facilities Manager.  The facts represented herein demonstrate that: the Town Council discussed filling the Facilities Manager position in January 2014, prior to the formation of the LCAS; the Town Council held numerous meetings to discuss and refine the job description for the Facilities Manager after it received recommendations from LCAS; the Town Council’s final version of the job description was three times as long as the LCAS version; the Town Council decided to fill the position and allocated funding for it in the FY2016 budget; the Town’s voters, at the annual Financial Town Meeting, had the opportunity to review the job description, and discussed its duties and funding; and the Town’s voters approved the FY2016 budget which included a line item for the Facilities Manager position.  Based upon the intervening actions by the Town Council and the Town’s voters, in addition to the fact that the LCAS had no decision-making authority relative to filling the position, approving the job description or funding the position of Facilities Manager, we find that the Petitioner’s actions as a member of LCAS did not cause him to be placed in a privileged position with respect to other applicants for the Facilities Manager position. 

For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from accepting employment with the Town of New Shoreham as its Facilities Manager. 

This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics.  Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings.  Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. 

Code Citations:

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-5(h)

§ 36-14-7(a)

Related Advisory Opinions:

A.O. 2011-48

A.O. 2009-22

A.O. 2003-5

A.O. 2002-20

Keywords: 

Prospective Employment

[1]  The Petitioner represents that in May 2014 the Planning Board, with the approval of the Town Council, created the LCAS.  He states that he was appointed to serve on the LCAS along with the chair and vice chair of the Planning Board, and six additional members of the public.  He informs that the purpose of the LCAS, an advisory body to the Town Council, was to review the Town of New Shoreham’s capital assets and to develop strategies and recommendations for maintenance, improvement and long-term use.

[2] The Petitioner represents that the Town Manager also currently serves as Director of Public Works. 

[3]  The LCAS draft job description, although then called Director of Public Works, was for what would become the Facilities Manager position:

Director of Public Works Job Description (Developed with Town Manager)

The Director of Public Works is responsible for managing the administrative and technical work involved in the planning, construction and maintenance to preserve and improve the Town of New Shoreham’s capital assets (Town owned buildings, land, roads, vehicles, infrastructure and equipment).  The work requires considerable independent judgment in the application of thorough technical knowledge and administrative skills. The Director shall report directly to the Town Manager and shall work in conjunction with a variety of department directors (e.g., school, library, sewer, etc.). As importantly, the Director will interface with the Finance Manager to determine budgets and funding solutions and the Planning Board/LCAS to develop short and long term capital and asset planning.  In addition, the Director shall provide coordination of the Town’s interests with other entities performing work within the Town or affecting the Town (e.g., Army Corps of Engineers, Block Island Power Co., U.S. Coast Guard, etc.).  The Director shall be responsible for incorporating sound sustainability and energy conservation principals into the public works of the Town.

[4]  First Warden LaCoste’s draft job description:

The Facilities Manager, shall be appointed by the Town Manager with the consent of the Town Council. The duties of the Facilities manager shall be the ongoing management of all buildings, and other facilities owned by the Town, with special attention to maintenance and repair of said facilities. These duties may include, without limitation and as assigned by the Town Manager, the following:

a)       Performing routine maintenance tasks on all Town buildings and other large assets as required;

b)       Maintaining an inventory for all Town buildings and properties

c)       Assuring the availability of personnel and parts for emergency repairs of critical building systems 

d)       Being available for emergencies, coordinating independent contractors when necessary; and

e)       Providing the Public Works Director with estimates of maintenance expenses for annual budget submission.

This work requires considerable independent judgement in the application of thorough technical knowledge and administrative skills.  The Facilities Manager shall report directly to the Public Works Director and shall work in conjunction with a variety of department heads.  The Facilities Manager will interface with the Finance Director to determine budgets and funding solutions and the Planning Board/LCAS to develop short and long term capital asset planning. In addition, the Manager shall provide coordination of the Town’s interests with other entities performing work within the Town or affecting the Town.  The Facilities Manager shall be responsible for incorporating sound sustainability and energy conservation principles into the public works of the Town.

[5]  The Town Manager, Nancy O. Dodge, represents that under the Charter the Town Manager has the authority to hire persons for positions below the level of department head, such as the position of Facilities Manager.  She states that, because it was a new position, the Town Council decided to appoint a Facilities Manager Search Committee (“Search Committee”) to assist the Town Manager, in an advisory capacity, in this hiring process.  The Town Manager represents that the Town Council appointed five persons to the Search Committee, including two members of the Planning Board, Sven Risom (also a member of the LCAS) and H. Dennis Heinz.  She informs that the Town received six applications, which both she and the Search Committee reviewed and then agreed to interview four candidates.  She states that she was present at the interviews but let the Search Committee ask the questions so she could listen and take notes.  She represents that she, as Town Manager, had the sole authority to determine who would be hired for the Facilities Manager position.  Commission Regulation 36-14-5006 (“Regulation 5006) provides, in relevant part, that “no elected or appointed official may accept any appointment or election that requires approval by the body of which he or she is or was a member, to any position which carries with it any financial benefit or remuneration, until the expiration of one (1) year” after his or her official date of severance from that body.  Although the Petitioner was interviewed by two of his fellow Planning Board members, the position of Facilities Manager did not require the approval of the Planning Board or the LCAS.