Advisory Opinion No. 2018-8 Rhode Island Ethics Commission Advisory Opinion No. 2018-8 Approved: February 6, 2018 Re: Michael Babbitt QUESTION PRESENTED: The Petitioner, a member of the Town of Lincoln Budget Board, a municipal elected position, requests an advisory opinion regarding whether he may participate in the Lincoln High School Building Committee’s selection and oversight of a construction manager for the high school renovation project, given that it is expected that his private employer will submit a bid. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the Petitioner, a member of the Town of Lincoln Budget Board, a municipal elected position, from participating in the Lincoln High School Building Committee’s selection of a construction manager for the high school renovation project, given that it is expected that his private employer will submit a bid. The Petitioner is further prohibited by the Code of Ethics from participating in the oversight of the construction manager if the contract is awarded to his employer. The Petitioner represents that he is a member of the Town of Lincoln Budget Board (“Budget Board”), and that he was recently asked by the Lincoln Town Administrator (“Town Administrator”) to serve on the Lincoln High School Building Committee (“Building Committee”) which is comprised of town council and school committee members, town and school officials, and a parent of one of the students. He further states that the Building Committee was formed to oversee all aspects of the high school renovation project including the hiring of an architect, owner’s project manager, construction manager, and commissioning agent. In his private capacity, the Petitioner represents that he is employed as an HVAC, plumbing and fire protection estimator by Dimeo Construction Company (“Dimeo”), a construction management company. The Petitioner explains that the Building Committee is about to begin the bid development and selection process for a construction manager on the school renovation project. The Petitioner states that Dimeo is likely to submit a bid for the contract. The Petitioner further represents that he has recused from participation in any discussions and decision-making relative to the bid process. Given this set of facts, the Petitioner is asking whether he may participate in the Building Committee’s bid development, review of proposals, award of a contract for a construction manager, and any oversight of such construction manager. Under the Code of Ethics, a public official shall 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 and employment in the public interest. R.I. Gen. Laws § § 36-14-5(a); 36-14-7(a). Furthermore, a public official shall not accept outside employment that will impair his independence of judgment as to his official duties or employment. Section 36-14-5(b). Also, a public official shall not use his public employment or confidential information received through his public employment to obtain financial gain personally or for a business by which he is employed. Section 36-14-5(d). Finally, the Code provides that a public official, as well as his relatives and business associates, shall not enter into contracts with any state or municipal agency “unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded.” Section 36-14-5(h). 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. By so doing they contravene the “open and public process” required under section 36-14-5(h) of the Code. In Advisory Opinion 2000-40, for example, the Ethics Commission opined that the Chief of the Nasonville Fire Department was prohibited from participating in the Nasonville Truck Committee’s bid selection and award of a contract for a new fire truck, given that his private employer had submitted a bid. Based upon his previous substantive participation in the process, the Ethics Commission opined that prospective recusal on Truck Committee matters was not sufficient to satisfy the requirements of the Code of Ethics. As a result, the Ethics Commission concluded that unless the Nasonville District initiated a process that neutralized the petitioner’s previous involvement in the bid process, thereby dissolving any potential conflicts of interest, the District could not, consistent with the Code of Ethics, award the contract to the petitioner’s employer. The Ethics Commission further explained that if the petitioner’s employer submitted a bid, but was not selected, the petitioner could then participate in Truck Committee matters concerning the contract for a new fire truck either after it was awarded or after his employer was eliminated from consideration for the award, whichever came first. Additionally, if the petitioner’s employer was awarded the contract through an appropriate open and public process, the petitioner could neither oversee, supervise, nor perform any discretionary act relating to the contract. See also A.O. 2000-11 (opining that special state contract employees were prohibited from participation in the preparation of requests for proposals, or the review of bids, if it was reasonably foreseeable that their regular private employer may respond to the requests for proposals at issue); A.O. 98-86 (concluding that a Westerly Town Councilor should not enter into a lease arrangement unless it was pursuant to an open and public process, nor could he submit a bid if he had participated in, or otherwise influenced, the bid development process). Similarly, here based on the Petitioner’s above representations and a review of prior advisory opinions, it is the opinion of the Ethics Commission that the Petitioner is prohibited from participating in all matters concerning the bid process including, but not limited to, bid development, review of proposals and awarding of the contract, given that his private employer is expected to submit a bid. Furthermore, if the Petitioner’s employer submits a bid, but is not selected, the Petitioner may thereafter participate in the Building Committee matters concerning the contract for a construction manager. Additionally, if the Petitioner’s employer is awarded the contract through an appropriate open and public process, the Petitioner shall not oversee, supervise, or perform any discretionary act relating to the contract, as such participation would be in substantial conflict with the discharge of his duties in the public interest as prohibited by section 36-14-5(a). Notice of recusal must be filed 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(b) § 36-14-5(d) § 36-14-5(h) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2000-40 A.O. 2000-11 A.O.98-86 Keywords: Private Employment Revolving Door Recusal Contracts