Advisory Opinion No. 2018-28 Rhode Island Ethics Commission Advisory Opinion No. 2018-28 Approved: May 15, 2018 Re: Brian Ferguson, P.E. QUESTION PRESENTED: The Petitioner, a Principal Civil Engineer with the Rhode Island Department of Transportation, Construction Management Group, a state employee position, requests an advisory opinion regarding what limitations the Code of Ethics places upon him, given that his first-cousin-in-law is employed by Manafort Brothers Incorporated, a contractor that often bids and currently provides services to the Department of Transportation. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Principal Civil Engineer with the Rhode Island Department of Transportation, Construction Management Group, a state employee position, may participate in Department of Transportation matters involving Manafort Brothers, a contractor who often bids and currently provides services to the Department of Transportation, notwithstanding that his first-cousin-in-law is employed by the contractor. The Petitioner is a Principal Civil Engineer with the Rhode Island Department of Transportation (“DOT”), Construction Management Group. The Petitioner explains that he oversees the construction of roads and bridges; reviews and interprets plans, specifications, and designs submitted by contractors, architects, or engineers; ensures that construction work schedules are maintained; and supervises the continuous inspection of workmanship, materials and methods used. He further represents that DOT is moving toward a project management style of management and more frequent use of requests for qualifications (“RFQ”) and requests for proposals (“RFP”) where he may be asked to provide assistance with specifications or be an advisor or member of the contractor selection committee. The Petitioner states that his wife’s first cousin, who is therefore his first-cousin-in-law, is employed as a General Superintendent by Manafort Brothers Incorporated (“Manafort Brothers”), a construction and demolition services firm which currently holds a contract with DOT and also routinely bids on DOT projects. The Petitioner explains that, as General Superintendent, his first-cousin-in-law supervises the superintendents who oversee Manafort Brothers’ various projects and with whom the Petitioner interacts on a day-to-day basis. The Petitioner notes that he does not oversee, inspect, or evaluate his first-cousin-in-law’s performance. The Petitioner further represents that whether a DOT contract is awarded to Manafort Brothers or not would neither have a financial impact on his first-cousin-in-law nor would impact his first-cousin-in-law’s employment with Manafort Brothers. The Petitioner also states that in the unlikely event that his first-cousin-in-law appears before him to represent his employer on a DOT project, the Petitioner will recuse and one of his supervisors will handle the matter. Given this set of facts, the Petitioner requests the guidance of the Ethics Commission regarding what limitations the Code of Ethics places upon him, given his first-cousin-in-law’s employment with a contractor that often bids and currently provides services to the DOT. Under the Code of Ethics, a public official or employee may 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 or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if he has reason to believe or expect that he, 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 or employment. Section 36-14-7(a). A “person within his . . . family” includes the official or employee’s first-cousin-in-law. Commission Regulation 36-14-5004(a)(2). The public official or employee is further prohibited from using his public office or position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate or a family member. See section 36-14-5(d). Additionally, Commission Regulation 36-14-5002 (“Regulation 5002”) requires a public official or employee to recuse himself from participation when any person within his family appears or presents evidence or arguments before his state or municipal agency. Regulation 5002(a)(1). Furthermore, Commission Regulation 36-14-5004 (“Regulation 5004”) of the Code of Ethics, prohibits a public official or employee from participating in any matter as part of his public duties if he has reason to believe or expect that any person within his family is a party to or a participant in the same matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage. Regulation 5004(b)(1). As an initial matter, the relationship between the Petitioner and his first-cousin-in-law’s employer, standing alone, is too remote to require his recusal from all matters involving Manafort Brothers. While the Code of Ethics clearly prohibits the Petitioner from participating in DOT matters that directly impact or involve his first-cousin-in-law, it does not require the Petitioner to recuse from participating in matters that financially impact his first-cousin-in-law’s employer, Manafort Brothers, absent a corresponding financial impact to the Petitioner’s first-cousin-in-law. For example, in Advisory Opinion 2015-45, the Ethics Commission advised the Deputy Chief of Legal Services for the Public Utilities Commission that she was not required to recuse from a matter in which National Grid was represented by a law firm that employed her husband as an associate attorney, based on the Petitioner’s representations that her husband was not assigned to work on the matter nor appear before the PUC, and he would not be financially impacted by the PUC’s decision as to National Grid. See also A.O. 2008-69 (opining that a member of the Woonsocket Zoning Board of Review was permitted to participate in discussions and voting on a petition for a variance brought by CVS, notwithstanding the fact that the petitioner’s sister was employed as an accounting analyst with CVS, since his sister would not be financially impacted by the Zoning Board of Review’s decision regarding the petition); A.O. 2008-60 (advising that a member of the Woonsocket Zoning Board of Review could participate in discussion and voting on a petition for a variance brought by CVS, notwithstanding the fact that the petitioner’s son and nephew were employed in the shipping department of CVS); A.O. 2007-16 (opining that a member of the Johnston School Committee could participate in the Committee’s review of bills submitted by The Providence Center, a provider of special education services that employed the petitioner’s mother as an office assistant); and A.O. 99-28 (concluding that a Westerly Zoning Board of Review member could participate in the review of Bess Eaton Donut’s application to construct a drive-through window, notwithstanding his spouse’s employment in Bess Eaton’s bakery department, since his spouse would not be impacted by the Zoning Board’s decision). In the instant request for an advisory opinion, the Petitioner has not identified a particular decision or matter before the DOT involving Manafort Brothers. Rather, the Petitioner requests the Ethics Commission’s general guidance as to the application of the Code of Ethics prior to contract advertising, during the construction bidding process, and after bid opening/contract award irrespective of whether Manafort Brothers is awarded the contract or not. Consistent with the above-cited advisory opinions, there is nothing in the facts represented by the Petitioner to indicate that it is reasonably foreseeable that the Petitioner’s involvement in DOT matters involving Manafort Brothers will have a financial impact upon his first-cousin-in-law as an employee of Manafort Brothers. However, the Petitioner is advised to remain vigilant in identifying any matters coming before the DOT that would have the potential to financially impact his first-cousin-in-law as a Manafort Brothers employee, and to be cognizant of any time his first-cousin-in-law appears before the DOT as a party or participant, representing himself or his employer. In all such cases, the Petitioner should either recuse from participation or seek additional guidance from the Ethics Commission. Notices of recusal must be filed with the Ethics Commission in accordance with 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 36-14-5002 Commission Regulation 36-14-5004 Related Advisory Opinions: A.O. 2015-45 A.O. 2008-69 A.O. 2008-60 A.O. 2007-16 A.O. 99-28 Keywords: Business Associate Financial Interest