Advisory Opinion No. 2018-42 Rhode Island Ethics Commission Advisory Opinion No. 2018-42 Approved: July 17, 2018 Re: Teresa Bartomioli QUESTION PRESENTED: The Petitioner, a member of the North Smithfield Town Council, a municipal appointed position, who in her private capacity is the President and co-owner of North Smithfield Fence, Inc., requests an advisory opinion regarding whether her company may continue to provide estimates or submit bids to perform work for the Town of North Smithfield and/or its various departments. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a municipal appointed position, who in her private capacity is the President and co-owner of North Smithfield Fence, Inc., may provide estimates and submit bids to perform work for the Town of North Smithfield and/or it various departments, provided that the contracts for such work are awarded through an open and public process. The Petitioner is a member of the North Smithfield Town Council (“Town Council”) who was appointed by her fellow council members on December 4, 2017, to fill an unexpired term that became available after the previous Town Council member resigned. She represents that, in her private capacity, she is the President and co-owner, along with her husband, of North Smithfield Fence, Inc. (“North Smithfield Fence”), a fencing company that has completed numerous projects for the Town of North Smithfield (“Town”) and its School and Sewer Departments since 2005. The Petitioner represents that contracts in the amount of more than $5,000 are awarded by the Town or its departments through a public sealed bidding process. In contrast, contracts in the amount of less than $5,000 are awarded through a purchase order, without prior or subsequent public notice, and after receiving estimates from various contractors. Given this set of facts, the Petitioner asks whether she may continue in her private capacity to perform work for the Town, its School and Sewer Departments or any other Town department. The Code of Ethics provides that the Petitioner may not have any interest or engage in any business or employment, which is in substantial conflict with the proper discharge of her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if she has reason to believe or expect that she or any family member or business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. R.I. Gen. Laws § 36-14-7(a). Additionally, pursuant to section 36-14-5(d) of the Code of Ethics, the Petitioner is prohibited from using her public position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself or a family member. The Code of Ethics also prohibits persons subject to the Code of Ethics such as the Petitioner or any person within her family from entering into a contract with any state or municipal agency unless the contract is awarded through an open and public process. Section 36-14-5(h). Finally, Commission Regulation 36-14-5014 (“Regulation 5014”)[1] 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.” For purposes of Regulation 5014, “employment” includes “service as an independent contractor.” See Regulation 5014(a)(1). Here, had the Petitioner been elected to the Town Council, then she would have been prohibited by Regulation 5014 from contracting with the Town or its departments. However, the Petitioner represents that she was appointed, rather than elected, to fill an unexpired term on the Town Council. Therefore, the unique circumstances described herein do not implicate the revolving door prohibitions set forth in Regulation 5014 of the Code of Ethics. The Petitioner is advised that if in the future she is elected to the Town Council, then she would be prohibited by Regulation 5014 from contracting with the Town or any Town agency even if she complies with the requirements of section 5(h) of the Code of Ethics as discussed below. Section 36-14-5(h) (“section 5(h)”) of the Code of Ethics allows public officials and their family members to enter into contracts with, or provide services to, state or municipal agencies only if the contracts are awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. Therefore, even if the Town’s purchasing procedures allow the award of certain contracts without prior or subsequent public notice, the Petitioner is prohibited under the Code of Ethics from entering into such contracts unless the process adheres to the requirements of section 5(h). Furthermore, the Ethics Commission has previously found that public officials who participate in the bid development process for a public entity place themselves, their family members and their business associates in a privileged position with respect to other bidders and, thus, contravene the “open and public process” required under section 5(h). Accordingly, if the Petitioner wishes to submit bid proposals to perform work for the Town, its departments, or any other municipal agency, she is prohibited from participating in the bid development process for such work. See A.O. 2008-14 (Chairperson of the Coventry Planning Commission may respond to an RFQ to perform municipal engineering services for the Town, provided that he did not participate in the bid specification process and that any contract awarded is pursuant to an open and public bidding process); A.O. 2003-5 (Cumberland School Committee member may provide fundraising services to the Cumberland School District provided that the contract is awarded through an open and public bidding process). Here, in accordance with R.I. Gen. Laws § 36-14-5(h) and prior advisory opinions, it is the opinion of the Ethics Commission that the Petitioner may enter into contracts with the Town, its departments, or any other municipal agency only if they are awarded through an open and public process, including prior public notice and subsequent disclosure of all proposals considered and contracts awarded and as long as she does not participate in the bid development or selection processes. Notice of recusal must be filed with the Ethics Commission in accordance with section 36-14-6 of the Code of Ethics. 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) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5014 Related Advisory Opinions: A.O. 2008-14 A.O. 2003-5 A.O. 97-72 Keywords: Contracts Private Employment [1]In May 2018, the Ethics Commission codified the Code of Ethics into the Rhode Island Code of Regulations (“RICR”), a uniform state code containing the rules and regulations of the various Rhode Island agencies. In order to do so, the Ethics Commission reformatted and renumbered the Code of Ethics. As a result, Regulation 36-14-5014 now corresponds to Regulation 520-RICR-00-00-1.5.4 Municipal Official Revolving Door (36-14-5014).