Advisory Opinion No. 2000-40

Re: Robert Melville, Jr.

QUESTION PRESENTED

The petitioner, the Chief of the Nasonville Fire Department, a regional employee position, requests an advisory opinion as to whether he may participate in the Nasonville Truck Committee’s bid selection and award of a contract for a new fire truck, given that his private employer has submitted a bid.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the petitioner, the Chief of the Nasonville Fire Department, a regional employee position, 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 has submitted a bid. Based upon his previous substantive participation in the process, prospective recusal on Truck Committee matters is not sufficient to satisfy the requirements of the Code. As a result, unless the Nasonville District initiates a process that neutralizes the petitioner's previous involvement in the preparation for and consideration of bids, thereby dissolving any any potential conflicts of interest, the District may not, consistent with the Code of Ethics, award the contract to the petitioner’s employer.

The petitioner advises that the Nasonville Fire District Operating Committee established the Nasonville Truck Committee to solicit bids for the purchase of a new fire truck. The Truck Committee is comprised of two Operating Committee members, the Nasonville Fire Captain and Deputy Fire Chief, as well as the petitioner, who exercises oversight responsibility. The petitioner represents that he solicited bids from Greenwood Fire Apparatus, another company from which the District previously purchased a fire truck, and a third local company. Greenwood employs the petitioner as a welder/fabricator. He indicates that bid specifications for the fire truck have yet to be established. At an upcoming meeting, the District will present to the taxpayers a request for a specific amount of funding for the new truck. If the request is approved, the Truck Committee will proceed to negotiate a contract with one of the three bidders. The Truck Committee will make its selection among the bidders based upon warranty and price factors. The petitioner further represents that he will recuse from participation in the Truck Committee’s final bid selection and award of the contract.

Under the Code of Ethics, a public employee may not participate in any matter in which he or she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his or her duties and employment in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). An employee may not accept outside employment that will impair his or her independence of judgment as to his or her official duties or employment. See R.I. Gen. Laws § 36-14-5(b). An employee also may not use his or her public employment or confidential information received through his public employment to obtain financial gain personally or for a business by which he or she is employed. See R.I. Gen. Laws § 36-14-5(d). Finally, the Code provides that public officials and employees, as well as their relatives and business associates, may 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 or all proposals considered and contracts awarded.” R.I. Gen. Laws § 36-14-5(h).

In previous advisory opinions, the Commission has advised public employees and officials seeking to contract with or provide services to the state or a municipality that they only could do so if the public entity used an open and competitive bidding process. See e.g., A.O. 97-72 (opining that the Charlestown Harbormaster, who also owned and operated a private business that sold and serviced diving equipment, could sell equipment to the Town only if it adhered to an open and public bidding process for such purchases); and A.O. 98-86 (concluding that a Westerly Town Councilor should not enter into 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).

In addition, the Commission previously has found that public officials or employees 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 the Code. See A.O. 95-60 (finding Narragansett Town Engineer would violate the Code of Ethics were he to accept a subcontract from Alpine Ski & Sports in the event that said company, also his employer, is awarded a contract from the Narragansett Town Council to provide scuba diving training to the Narragansett Police Department Dive Team given that the petitioner provided input as to the training involved for scuba diver certification).

The Commission concludes that the petitioner may not participate in any matters regarding the Truck Committee’s bid review and/or selection and the contract award. Here, given the extent of his direct involvement in the process, the Commission finds that his prospective recusal on all Truck Committee matters would fall short of the requirements of the Code of Ethics. The petitioner already has played a substantive role in the selection process by soliciting bids from three companies from which the District will make its final selection, including his employer. Therefore, unless and until the District initiates a process that neutralizes the petitioner's previous involvement in the preparation for and consideration of bids, thereby dissolving any any potential conflicts of interest, the District may not, consistent with the Code of Ethics, award the contract to the petitioner’s employer.

In this instance, such a process would require the District’s Operating Committee to assume the role of the Truck Committee and either begin the bid solicitation process anew or initiate an open and public bidding process. While adherence to an open and public process is not required by Section 5(h) in this instance, given the petitioner’s status as a Greenwood employee, rather than its “business associate” under the Code, the District may request proposals and award a contract for the purchase of a fire truck through an open and competitive bidding process.

In the event that the District takes corrective actions, if Greenwood intends to submit a bid, the Code requires the petitioner to recuse from participation in all matters concerning the bid process, including, but not limited to bid development, review of proposals and awarding of the contract. The recusal requirement also would extend to the two Truck Committee members who are the petitioner’s subordinates within the Fire Department. Here, given the nature of the Truck Committee’s duties, the petitioner and his subordinates effectively would be precluded from serving on the Truck Committee in any capacity.

If Greenwood submits a bid, but is not selected, the petitioner and his subordinates may then participate in Truck Committee matters concerning the contract for a new fire truck either after it is awarded or after Greenwood is eliminated from consideration for the award, whichever comes first. In any event, should Greenwood be awarded the contract through an appropriate open and public process, neither the petitioner nor his subordinates may oversee, supervise, or perform any discretionary (as compared to ministerial) act relating to the contract. Such participation would be in substantial conflict with the discharge of their duties of employment in the public interest as prohibited by R.I. Gen. Laws § 36-14-5(a).

Finally, if Greenwood submits a bid, pursuant to R.I. Gen. Laws § 36-14-5(e)(4), the petitioner may not appear personally before either the District or the Fire Department in any matter relating to the bid or contract unless it is ministerial in nature or the Ethics Commission grants a hardship exemption. Section 5(e)(1) prohibits a public official or employee from representing his or others’ particular financial interests before the public body to which he belongs or by which he is employed both while he is a member or employee and for a period of one year from the date of his severance from that public body.

Code Citations:

36-14-5(a)
36-14-5(b)
36-14-5(c)
36-14-5(d)
36-14-5(e)
36-14-6
36-14-7(a)

Related Advisory Opinions:

2000-11
99-37
98-124
98-95
98-90
98-86
98-79
98-61
98-50
98-46
97-148
97-136
97-122
97-90
97-72
97-66
97-50
97-48
97-37
97-24
97-15
95-90
95-60
95-41

Keywords:

Contracts
Private employment
Recusal