Advisory Opinion No. 2019-40 Rhode Island Ethics Commission Advisory Opinion No. 2019-40 Approved: July 16, 2019 Re: Richard Iannitelli QUESTION PRESENTED: The Petitioner, a member of the Smithfield School Committee, a municipal elected position, who is also a member of the Smithfield School Building Committee, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the review of a Request for Proposal for, and the selection of, a construction manager for an elementary school reconfiguration project, and from all other Building Committee matters concerning the selected construction manager, given that his daughter 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 Committee, a municipal elected position, who is also a member of the Smithfield School Building Committee, a municipal appointed position, is not prohibited by the Code of Ethics from participating in the review of a Request for Proposal for, and the selection of, a construction manager for an elementary school reconfiguration project, and from all other Building Committee matters concerning the selected construction manager, notwithstanding that his daughter is employed by a company that is expected to bid on the project. The Petitioner represents that he served as an elected member of the Smithfield School Committee (“School Committee”) from 1994 until 2014, and was elected to the School Committee again in November of 2018. He states that he is one of two School Committee members appointed by the Chairperson of the School Committee to serve on the Smithfield School Building Committee (“Building Committee”). He explains that the Building Committee is an ad hoc committee comprised of Smithfield Town Council (“Town Council”) members, School Committee members, and various other officials and residents of the Town of Smithfield. The Petitioner further 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. He adds 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 his daughter is currently employed as a civil engineer for Gilbane Building Company in New York (“Gilbane NY”) and, as such, is a salaried employee and not an owner, partner or shareholder. The Petitioner represents that, because Gilbane Building Company in Rhode Island (“Gilbane RI”) has bid on various school construction projects in Rhode Island in the past, it is likely that Gilbane RI will bid on the construction manager position for the project in Smithfield.[1] He adds that Gilbane RI and Gilbane NY act independently in terms of the development and execution of contracts. The Petitioner states that candidates for all positions will likely 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 explains that, if Gilbane RI is one of the companies to appear before the Building Committee as part of its bid to become construction manager on the project, his daughter will not be involved in the preparation or presentation of its proposal, or in any aspect of the contract, if awarded. The Petitioner adds that his daughter’s salary will not be financially impacted, directly or otherwise, regardless of whether Gilbane RI is awarded a contract in connection with the project. The Petitioner represents that the next step in the project will be for a design team, of which he is not a part, to assemble an RFP. The design team will present the RFP to the Building Committee for initial review before it is then presented to the Town Council for final review. Given this set of facts, the Petitioner requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the initial review of the RFP, the selection of a construction manager, and all other Building Committee matters concerning the selected construction manager. 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 of Ethics 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 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 family member, business associate, or employer of the person might be involved. For example, in Advisory Opinion 2019-17, a member of the same Building Committee on which the instant Petitioner serves was prohibited from participating in the selection of a construction manager for the very same project that is the subject of the instant advisory opinion. The facts in that advisory opinion were such that the petitioner’s son, as Manager of Business Development for Gilbane RI, would not only be the one to make the presentation before the Building Committee as part of his employer’s bid to become construction manager on the project, but would also then become eligible for a monetary year-end bonus were he to be successful in helping to secure a contract for Gilbane RI. The Code does not, however, 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); 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). Here, the Petitioner has no reason to believe or expect that his daughter will be financially impacted, directly or otherwise, by reason of his official activity as a member of the Building Committee in relation to the selection of a construction manager for the project. Nor will the Petitioner’s daughter be involved in the preparation or presentation of a proposal by Gilbane RI, or in any aspect of the contract, if awarded. Given that the Petitioner’s daughter is employed by Gilbane NY, no corresponding benefit would flow to her if Gilbane RI is ultimately selected for the position of construction manager of the project. 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 not prohibited from participating in the 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; any discussions and decision-making regarding the award of a contract for the position of construction manager; or any matters concerning the construction manager selected for the project. 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) § 36-14-7(a) 520-RICR-00-00-1.1.5 Reasonable Foreseeability (36-14-7001) 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002) 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) Related Advisory Opinions: A.O. 2019-17 A.O. 2008-69 A.O. 2007-16 Keywords: Conflict of Interest Family Member Nepotism [1] The Petitioner states that on June 12, 2019, the Building Committee engaged in discussions and voting on the issue of whether to select a general contractor or construction manager for the project, at which time it was determined that a construction manager would be hired. The Petitioner further states that, out of an abundance of caution pending the receipt of an advisory opinion from the Ethics Commission, he recused himself from participation.