Advisory Opinion No. 2018-57 Rhode Island Ethics Commission Advisory Opinion No. 2018-57 Approved: December 11, 2018 Re: Megan DiPrete QUESTION PRESENTED: The Petitioner, Chief of the Division of Planning and Development at the Department of Environmental Management, a state employee position, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places upon her in carrying out her current duties, given that her first cousin owns and operates a civil engineering firm that is among those vendors from whom the Division of Planning and Development, sometimes in conjunction with the Department of Administration, solicits bids on contracts for capital improvement projects. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Chief of the Division of Planning and Development at the Department of Environmental Management, a state employee position, may carry out her current duties in conformance with the Code of Ethics at this time, notwithstanding that her first cousin owns and operates a civil engineering firm that is among those vendors from whom the Division of Planning and Development, sometimes in conjunction with the Department of Administration, solicits bids on contracts for capital improvement projects, because it is not reasonably foreseeable that the Petitioner’s first cousin will bid on any contracts for capital improvement projects. The Petitioner is Chief of the Division of Planning and Development (“P&D”) at the Department of Environmental Management (“DEM”). The Petitioner represents that, under her direction and/or supervision, P&D solicits vendors to perform work on capital improvement projects for the DEM in accordance with state procurement regulations. The Petitioner states that engineering design work on capital improvement projects is procured by utilizing one of three processes described below. The Petitioner represents that when the cost of a project is less than $2,500 (“Small Purchase Project”), the DEM is permitted to solicit multiple proposals and recommend a vendor. The Petitioner notes that this generally relates to small survey projects, for example, since most engineering projects exceed this threshold. The Petitioner states that the second process utilized to procure engineering design work for the DEM is the Master Price Agreement (“MPA”) Approach. The Petitioner explains that, for qualifying projects, P&D engineering staff develop a scope of work, prepare the materials needed for obtaining quotes, and then send the materials to all of the pre-qualified vendors identified on the relevant MPA list (“MPA 494”).[1] The Petitioner states that engineers from P&D review and evaluate all proposals received, and the project engineer tallies the responses, identifies the lowest responsive bid, and prepares a memorandum to the Department of Administration Division of Purchases (“DOA”) summarizing the bid effort and responses, and recommending a firm for the work.[2] The Petitioner states that the DOA then completes the selection process and awards the contracts. The Petitioner represents that the third process utilized to procure engineering design work for the DEM is the Full Procurement Approach. The Petitioner explains that, as with the MPA Approach, P&D engineering staff develop a scope of work for qualifying projects. The Petitioner further explains that the project file is then provided to the DOA, where a complete procurement process is conducted, including advertising the solicitation, screening the proposals, and issuing a contract to the selected vendor.[3] The Petitioner states that the DOA may host a pre-bid meeting, to which a P&D engineer is invited to answer questions about the project. The Petitioner states that her first cousin, Dennis DiPrete, owns and operates DiPrete Engineering, a civil engineering firm listed on MPA 494 as of June of 2018. The Petitioner explains that neither she nor any of her colleagues at the DEM of whom she inquired are aware of any instances in which DiPrete Engineering bid on or was hired for any P&D-related work during the past five years. The Petitioner also represents that she has also inquired of her predecessor, the former Division Chief who worked for P&D for more than ten years, who indicated that she did not recall DiPrete Engineering responding to any P&D solicitations. The Petitioner states that she has also personally spoken with Dennis DiPrete, who indicated that he had no recollection of DiPrete Engineering responding to any P&D solicitations, adding that DiPrete Engineering has no plans to respond to P&D solicitations going forward. The Petitioner represents that it is not reasonably foreseeable that DiPrete Engineering will bid on any capital improvement projects, adding that, in the event that DiPrete Engineering were to respond to any purchasing solicitation from P&D, or should the Petitioner become aware of a response by DiPrete Engineering to any purchasing solicitations from the DOA, she would immediately cease all involvement in the matter, which would then be referred to the Petitioner’s supervisor, Dean Hoxsie (“Mr. Hoxsie”), the Acting Associate Director of the DEM’s Bureau of Natural Resources. The Petitioner represents that she has instructed P&D staff that, if DiPrete Engineering appears or makes inquiry at a pre-bid meeting, Mr. Hoxsie is to be notified and all communications with the Petitioner about the project are to cease. The Code of Ethics provides that an employee of a state agency 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 her duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). An employee of a state agency has an interest which is in substantial conflict with the proper discharge of her duties or employment in the public interest if she has reason to believe or expect that she or any person within her family or any business associate, or any business by which she is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). A person within her family includes a first cousin. Commission Regulation 36-14-5004(a)(2) (“Regulation 5004”).[4] An employee of a state agency has reason to believe or expect a conflict of interest exists when it is “reasonably foreseeable,” that is, when the probability is greater than “conceivably,” but the conflict of interest need not be certain to occur. Commission Regulation 36-14-7001.[5] The Code of Ethics also provides that an employee of a state agency shall not participate in any matter as part of her public duties if she has reason to believe or expect that any person within her family is a party to or a participant in such matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage, as the case may be. Regulation 5004(b)(1). The Code of Ethics further provides that an employee of a state agency shall not participate in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within her family, in the state agency in which she is serving or over which she exercises fiscal or jurisdictional control, except in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion. Regulation 5004(b)(2)(A). An employee of a state agency shall not delegate to a subordinate any tasks relating to the supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within her family, except in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion. Regulation 5004(b)(2)(B). The Ethics Commission has previously opined that a person subject to the Code of Ethics may not prepare requests for proposals, review bids, or participate in the selection of vendors for construction projects when it was reasonably foreseeable that a business associate or employer of the person might be involved. See A.O. 2018-18 (opining that the petitioner, a member of the Town of Lincoln Budget Board, was prohibited from participating in the Lincoln High School Building Committee’s selection of a construction manager for the high school renovation project, given the expectation that the petitioner’s private employer would submit a bid, and that the petitioner was further prohibited by the Code of Ethics from participating in the oversight of the construction manager if the contract was awarded to his employer); A.O. 2010-14 (opining that a Senior Environmental Scientist with the Rhode Island DEM could not review permit applications submitted by the Westerly Land Trust to DEM if she provided the Land Trust with professional and technical advice for permit applications); A.O. 2000-11 (opining that employees subject to the Code of Ethics could not participate in the preparation of requests for proposals (“RFP”) or the review of bids if it was reasonably foreseeable that their regular private employer might respond to the RFP at issue). As the Chief of P&D, the Petitioner would have a substantial conflict with the proper discharge of her duties were it reasonably foreseeable that DiPrete Engineering, which is owned and operated by her first cousin, were to participate in any aspect of projects initiated by P&D. This would include the development of the scope of work and contract materials, the solicitation and review of bids, the award of any contract, and any involvement whatsoever for the duration of the project. In addition to the prohibition against direct supervisory action by the Petitioner of any work involving DiPrete Engineering, the Petitioner also may not delegate her supervisory responsibilities over projects involving DiPrete Engineering to a subordinate. The Petitioner has made an affirmative statement that it is not reasonably foreseeable that DiPrete Engineering will bid on a project. The Petitioner represents that, in the event that DiPrete Engineering were to respond to any purchasing solicitation that falls within P&D’s realm, the Petitioner would immediately recuse from participation, and the matter would be referred to the Petitioner’s supervisor, Mr. Hoxsie. The Petitioner has instructed P&D staff that, if DiPrete Engineering makes an inquiry or even appears at a pre-bid meeting, Mr. Hoxsie is to be notified and all communications with the Petitioner about the project must cease. Under this set of facts, the Code of Ethics does not prohibit the Petitioner from participating in the solicitation of bids from vendors who wish to be awarded contracts in connection with the DEM’s capital improvement projects because it is not reasonably foreseeable that DiPrete Engineering will bid on any of these contracts. However, if circumstances should change such that it becomes reasonably foreseeable that DiPrete Engineering will bid on a capital improvement project while the Petitioner is Chief of P&D, the Petitioner is prohibited from participating in all matters concerning such bid process including, but not limited to, bid development, review of proposals, and the awarding of a contract. In the event that DiPrete Engineering does bid on a capital improvement project while the Petitioner is Chief of P&D, the Petitioner is cautioned to promptly recuse from participation in accordance with section 36-14-6 and seek further guidance from this Commission. 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) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5004 Commission Regulation 36-14-7001 Related Advisory Opinions: A.O. 2018-18 A.O. 2010-14 A.O. 2000-11 Keywords: Conflict of Interest Nepotism Family Member [1] There are presently about 50 pre-qualified architecture and engineering firms on MPA 494. The DOA requires responses from three vendors to assure competitiveness. In the event fewer than three vendors respond, the effort by the DOA to have secured three responses must be documented. [2] If the recommended firm is not the lowest bid, the memorandum must document the justification for the recommendation. [3] When responsible for a full procurement, the DOA is not bound by the MPA. Vendors need not be “prequalified” on the MPA in order to bid on a solicitation. [4] 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 5004 now corresponds to Regulation 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004). [5] Commission Regulation 36-14-7001 now corresponds to Regulation 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001).