Advisory Opinion No. 2019-17 Rhode Island Ethics Commission Advisory Opinion No. 2019-17 Approved: February 26, 2019 Re: S. James Busam QUESTION PRESENTED: The Petitioner, a member of the Smithfield School Building Committee, a municipal appointed position, seeks an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the selection of a construction manager for the elementary school reconfiguration project, given that his son is employed by a company that is expected to bid on the project. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Smithfield School Building Committee, a municipal appointed position, is prohibited by the Code of Ethics from participating in the Smithfield School Building Committee’s selection of a construction manager for the elementary school reconfiguration project, given the reasonable foreseeability of financial impact upon his son, who is employed by a company that is expected to bid on the project. The Petitioner states that, in December of 2018, he was appointed by the Smithfield Town Council (“Town Council”) to the Smithfield School Building Committee (“Building Committee”). The Petitioner further states that the Building Committee is an ad hoc committee comprised of Town Council members, Smithfield School Committee members, and various other officials and residents of the Town of Smithfield. The Petitioner explains that the Building Committee has been tasked with overseeing all aspects of the elementary school reconfiguration project (“project”) including, but not limited to, making recommendations to the Town Council about the bid specifications for and selection of an architect, owner’s project manager, construction manager and/or general contractor, commissioning agent, and testing agency for the project. The Petitioner further explains that a separate Request for Proposal (“RFP”) will be prepared for each of the aforementioned positions sought for the project, given that their roles are separate and distinct. The Petitioner states that he retired from a 40-year career in design and construction on December 31, 2018, adding that immediately prior to his retirement he was employed part-time as a technical consultant to Gilbane Building Company (“Gilbane”). The Petitioner represents that his professional relationship with Gilbane ended when he retired. The Petitioner states that his son is currently Manager of Business Development for Gilbane and, as such, identifies opportunities for Gilbane to provide services and then guides Gilbane through the RFP process. The Petitioner further states that once a contract is awarded, an operation team from Gilbane assumes responsibility for the day-to-day activities of the work, and any involvement by the Petitioner’s son ceases. The Petitioner represents that, because Gilbane has bid on various school construction projects in Rhode Island in the past, it is likely that Gilbane will bid on the construction manager position for the project in Smithfield. The Petitioner further represents that candidates for all positions are expected to appear before the Building Committee to make presentations designed to aid in the selection of those to be awarded contracts under the project. The Petitioner adds that, if Gilbane is one of the companies to appear before the Building Committee as part of its bid to become construction manager on the project, the Petitioner’s son will be making the presentation. The Petitioner offers that, were Gilbane to be awarded a contract under the project, the Petitioner’s son would be eligible for a bonus at the end of this year, adding that any bonus for his son would come solely as a result of his having helped to secure the contract for Gilbane, and not be related in any way to the subsequent execution of work under the contract. The Code of Ethics provides that a public official 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 his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A public official has an interest which is in substantial conflict with the proper discharge of his duties in the public interest if he has reason to believe or expect that he or any person within his family or any business associate, or any business by which he is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). A public official has reason to believe or expect a conflict of interest exists when it is “reasonably foreseeable,” specifically, when the probability is greater than “conceivably,” but the conflict of interest need not be certain to occur. Commission Regulation 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001). A public official is further prohibited by the Code 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, employer or family member. Section 36-14-5(d). Additionally, a public official is required to recuse himself from participation when a business associate or any person within his family appears or presents evidence or arguments before his public agency. Commission Regulation 520-RICR-00-00-1.2.1(A)(1) Additional Circumstances Warranting Recusal (36-14-5002). The Code of Ethics also provides that a public official shall not participate 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 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. Commission Regulation 520-RICR-00-00-1.3.1(B)(1) Prohibited Activities – Nepotism (36-14-5004). The recusal provisions of the Code of Ethics do not apply to matters that involve or impact the Petitioner’s former employer or business associates, provided that the business relationship between the Petitioner and the other party has ended and there is no specific future business relationship anticipated between the parties. See A.O. 2013-21 (opining that a member of the State Labor Relations Board, a private attorney, was not required to recuse from matters involving his former law client provided that the representation had concluded, that all outstanding legal fees were paid in full, and there was no reasonable likelihood of reestablishing an attorney/client relationship in the foreseeable future). Here, the Petitioner is a former employee of Gilbane, the professional relationship between them having ended when the Petitioner retired on December 31, 2018. Therefore, an opinion on the issue of recusal rests, not on the Petitioner’s former employment by Gilbane, but on the reasonable foreseeability of financial impact upon the Petitioner’s son, who is currently employed by Gilbane. The Ethics Commission has previously opined that a person subject to the Code of Ethics could 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. 2018-08 (opining that a member of the 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). However, the Code does not generally require a public official to recuse from participating in matters that involve or financially impact a family member’s business associate or employer unless there is also a corresponding benefit flowing to that family member. See A.O. 2008-69 (opining that a member of the Woonsocket Zoning Board of Review was permitted to participate in discussion 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). Based on the Petitioner’s representations, the application of the Code of Ethics, 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 before the Building Committee that involve or financially impact his son. That includes, but is not limited to, development of the RFP for the position of construction manager, the solicitation and review of bids and/or oral presentations by the candidates for the position of construction manager, and all discussions and decision-making regarding the award of a contract for the position of construction manager. Once the construction manager for the project has been selected with no involvement by the Petitioner, regardless of whether the contract is awarded to Gilbane, the Petitioner may participate in Building Committee matters concerning the position of construction manager only to the extent that his son would no longer be involved or financially impacted. All notices of recusal must be filed 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) Regulation 520-RICR-00-00-1.1.5 Regulation 520-RICR-00-00-1.2.1 Regulation 520-RICR-00-00-1.3.1 Related Advisory Opinions: A.O. 2018-08 A.O. 2013-21 A.O. 2008-69 Keywords: Conflict of Interest Family Member Nepotism