Advisory Opinion No. 2016-34 Rhode Island Ethics Commission Advisory Opinion No. 2016-34 Approved: September 27, 2016 Re: Brian Moore QUESTION PRESENTED : The Petitioner, the Administrator of the Stormwater Management Program within the Rhode Island Department of Transportation, a state employee position, requests an advisory opinion as to what limitations the Code of Ethics places upon him given that his brother-in-law is a Senior Project Manager with BETA Engineering, a contractor currently providing inspections for the Stormwater Management Program. RESPONSE : It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics requires the Petitioner , the Administrator of the Stormwater Management Program within the Rhode Island Department of Transportation, a state employee position, to recuse from any discussions and decision-making relative to work performed by BETA Engineering, given that his brother-in-law is a Senior Project Manager with BETA Engineering , who is assigned to manage the contract with the Rhode Island Department of Transportation, and who would be financially impacted by reason of Petitioner’s official activity. The Petitioner is the Administrator of the Stormwater Management Program ( “Program” ) within the Rhode Island Department of Transportation (“ RIDOT ”) . The Petitioner is charged with the administration, development, implementation, and management of the Program. Specifically, the Petitioner indicates that some of his duties include the identification, location, and inspection of drainage structures within the State ’ s stormwater and drainage s ystem and the evaluation of discharge levels of pollutants into the State waters . The Petitioner represents that he is also responsible for all of the Program ’ s budget matters, the selection and hire of new employees, as well as the development of the selection criteria for various consultants needed on projects. The Petitioner states that , prior to his employment as the Administrator, the RIDOT awarded BETA Engineering ( “ BETA ” ) a Blanket Purchase Agreement ( “ Agreement ” ) to provide inspections of up to four thousand catch basins for the Stormwater Management Program. The Petitioner informs that his brother-in-law is a Senior Project Manager with BETA, charged with the general oversight of BETA ’ s performance under the Agreement. The Petitioner represents that BETA is an employee- owned company where , based o n BETA’s yearly performance and an appraisal, its employees annually receive company shares toward their retirement plans. The Petitioner states that on e of his subordinate s, a Chief Engineer ( “ Junior Chief Engineer ” ) , [1] is charged with oversight of the technical aspects of the Program, including hiring of consultants and the review of BETA ’ s progress reports and proposals. The Petitioner represents that he does not partic ipate in the direct supervision or evaluation of the RIDOT’s contract with BETA . However, BETA provides the Junior Chief Engineer with monthly progress reports indicating the work performed, along with a payment request . After the Junior Chief Engineer reviews the report, he would normally present it to the Petitioner . In turn, the Petitioner would forward the re port to his immediate superior , the Senior Chief Engineer for approval, who submits it to the Financial Department for payment processing. The Petitioner states that BETA ’ s Agreement allows for an increase or decrease in the number of catch basins to be inspected. The Petitioner represents that , normally , the Junior Chief Engineer along with an Environmental Scientist would review the need for such increase or decrease and submit their recommendation to the Petitioner. In turn, the Petitioner would review the budget and advise as to the feasibility of such increase. Aware of the Code of Ethics ’ application on issues of nepotism, the Petitioner represents that he is not participating in any review and decision- making relative to the inspections performed by BETA . Such review and decision-making is instead being performed by the Senior Chief Engineer . Generally, the Code of Ethics provides that a public official or employee shall not have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity which is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if the official or employee has reason to believe or expect that he or any family member, among others, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Also, a public official or employee may not use his public position to obtain financial gain, other than that provided by law, for himself or any member of his family. Section 36-14-5(d). Commission Regulation 36-14-5004 contains specific regulations aimed at curbing nepotism. Pursuant to Commission Regulation 36-14-5004(b)(1), a public official may not participate in any matter as part of his public duties if “any person within his or her family” is a participant or party, or if there is reason to believe that a family member will be financially impacted or will obtain an employment advantage. Furthermore, a public official may not participate in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within his family, nor may he delegate such tasks to a subordinate. Commission Regulation 36-14-5004(b)(2)(A) & (B). The phrase “any person within his or her family” expressly includes “brother-in-law.” See Commission Regulation 36-14-5004(a)(2). In past advisory opinions, the Commission has prohibited public officials from overseeing contracts involving work performed by family members. See A.O. 98-79 (opining that the Chief of the Ashaway Volunteer Fire Association may not oversee, supervise or perform any discretionary act relating to a contract being performed by his first cousin’s business ); A.O. 97-49 (opining that the Community Development Coordinator for the City of Warwick is prohibited from overseeing, or having any involvement that would require him to exercise discretion regarding, the contract awarded to the architectural firm owned and operated by his uncle and first cousins). Compare A.O. 2009-48 (concluding that a member of the Coventry School-Related Personnel Pension Committee was not prohibited from participating in matters financially impacting her sister-in-law’s employer, Angell Pension Group (“AGP”), given that her sister-in-law has no ownership interest in AGP and would not be financially impacted). H ere , the Petitioner ’s brother-in-law is the Senior Project Manager at BETA assigned to oversee BETA’s performance under the Agreement . Furthermore , BETA is an employee - owned company where , based on BETA’s yearly performance and appraisal, the employees receive company share s toward their retirement plans. Therefore, decisions made by the Petitioner regarding inspections performed by BETA have the potential to financially impact his brother-in-law . Accordingly, after considering all of the representations made herein , as well as our review of past advisory opinions and the provisions of the Code of Ethics, including Commission Regulation 36-14-5004, it is our opinion that the Petitioner must recuse from any discussions and decision-making relative to work perform ed by BETA under the Agreement. Upon recusal, these matters must be handled without input from the Petitioner. Decisions that would normally be made by the Petitioner may, upon the Petitioner's recusal , be reviewed and decided by the Petitioner ’s superior Chief Engineer . Notice of recusal must be filed with the Ethics Commission pursuant to section 36-14-6. 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) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5004 Related Advisory Opinions : A.O. 98-79 A.O. 97-49 A.O. 2009-48 Keywords : Nepotism Recusal