Advisory Opinion No. 2017-24 Rhode Island Ethics Commission Advisory Opinion No. 2017-24 Approved: May 23, 2017 Re: Charles A. Collins, Jr. QUESTION PRESENTED: The Petitioner, a member of the Scituate Town Council, a municipal elected position, requests an advisory opinion regarding whether he may continue to sell heating oil to Rockland Oaks, a senior low-income housing development owned by the Scituate Housing Authority. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Scituate Town Council, a municipal elected position, may continue to sell heating oil to Rockland Oaks, a senior low-income housing development owned by the Scituate Housing Authority. The Petitioner is a member of the Scituate Town Council (“Town Council”). He was first elected in November 2006, and has served continuously since. In his private capacity, the Petitioner is the owner of Collins Burner Service (“CBS”), which is in the business of providing heating oil and oil burner maintenance services. The Petitioner represents that his father started CBS in 1948, and that the Petitioner inherited and took ownership of the business in 2003. The Petitioner states that one of CBS’s longstanding heating oil customers is Rockland Oaks, a 24-unit, senior low-income housing development located in the Town of Scituate (“the Town”). The Petitioner states that CBS has provided heating oil to Rockland Oaks since it was originally built in 1982. He further represents that Rockland Oaks is owned by the Scituate Housing Authority (“Housing Authority”), a quasi-public municipal agency of the Town that is governed by a board of commissioners who are appointed by the Town Council. Although owned by the Housing Authority, the Petitioner represents that the management of Rockland Oaks has long been contracted out to a private property management agency, Rural Consulting & Management (“RC&M”). According to the Petitioner, RC&M’s property management duties includes obtaining heating oil and maintaining the heating systems. The Petitioner states that he communicates directly with RC&M for heating oil deliveries and oil burner service, and is paid directly by RC&M and not the Housing Authority or the Town of Scituate. He further represents that there is no written contract between CBS and RC&M for oil deliveries; rather, it has been understood that he will continue to make monthly deliveries and be paid for the invoices he submits. The Petitioner states that he has no contact whatsoever with the Housing Authority or its members relative to heating oil issues, and that to the best of his knowledge the Housing Authority has no involvement with RC&M’s decision-making relative to purchasing heating oil. Based on these facts, the Petitioner asks whether the Code of Ethics prohibits him from continuing to sell heating oil to Rockland Oaks. The Code of Ethics provides that a public official shall not have an interest, or engage in any business or employment, 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 occurs if the public official has reason to believe or expect that he or any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Additionally, pursuant to section 36-14-5(d), a public official is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate or employer. Finally, Commission Regulation 36-14-5014 (“Regulation 5014”) provides that no municipal elected official “shall seek or accept” employment with any municipal agency in the municipality in which said official serves, “other than employment which was held at the time of the official’s election or appointment to office.” Id. The term “employment” as used in this section expressly includes service as an independent contractor to the municipality or municipal agency. Commission Regulation 36-14-5014(a)(1). As an initial matter, it is likely that Regulation 5014’s prohibition against municipal employment or contracting by elected officials would not apply because CBS has continuously provided heating oil to Rockland Oaks since 1982, and because the Petitioner’s ownership of CBS predated his election to the Town Council in 2006. Regulation 5014 expressly excludes “employment which was held at the time of the official’s election [] to office.” However, even if the Petitioner’s oil deliveries did not predate his election, it does not appear that the Code of Ethics prohibits the Petitioner from selling heating oil to Rockland Oaks because he is contracting with a private entity and not a municipal agency. As previously mentioned, the Petitioner represents that he has no communication with the Housing Authority relative to his heating oil sales. Rather, he deals with the private property manager, RC&M, who was hired by the Housing Authority to manage Rockland Oaks. His invoices are send to RC&M personnel and he is paid by RC&M. A somewhat analogous situation was presented in Advisory Opinion 2014-17, in which a member of the Charlestown Town Council sought advice as to whether the Code of Ethics permitted her to accept employment as a food cart operator from an individual with whom the Town of Charlestown had entered into a food concession contract. The Ethics Commission opined that the Code of Ethics permitted such employment, because although municipal elected officials are barred from seeking or accepting employment or independent contracting work from their own municipalities, the Code of Ethics does not prohibit Town officials from accepting private employment from a person or business that is a municipal vendor, at least under circumstances where the public official did not participate in awarding the contract. See also A.O. 2011-25 (State Representative may accept work as a subcontractor to a general contractor who had been awarded a state contract). Consistent with those prior advisory opinions, in the instant matter although municipal elected officials are barred from seeking or accepting employment or independent contracting work from their own municipalities, the Code of Ethics does not prohibit the Petitioner from becoming a contractor with a person or business, such as RC&M, that is a municipal vendor, at least under circumstances such as those presented here where the Petitioner’s services to Rockland Oaks significantly predated his election to the Town Council and where no municipal official or agency is involved in procuring the Petitioner’s services or negotiating their terms. Although the Petitioner is not precluded by the Code of Ethics from continuing to contract with RC&M to sell heating oil to Rockland Oaks, he will be required to recuse from participating in any Town Council discussions and voting on matters, if any, that are likely to financially impact RC&M, who is considered to be the Petitioner’s “business associate” under the Code of Ethics. Notice of any such recusal shall be filed with the Town and the Ethics Commission consistent with section 36-14-6. The Petitioner is encouraged to seek further advice from the Ethics Commission as needed. 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 36-14-5014 Related Advisory Opinions A.O. 2014-17 A.O. 2011-25 Keywords Contracts Private Employment Revolving Door