Advisory Opinion No. 2001-5

Re: Town of West Warwick


The West Warwick Solicitor requests an advisory opinion on behalf of the petitioner, the West Warwick Housing Rehabilitation Coordinator, a municipal appointed position, as to whether a Town Councilor’s sibling may apply for and receive Community Development Block Grant (CDBG) funds, given that the Councilor voted on and approved the Town’s year 2000 CDBG grant.


It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the sibling of a West Warwick Town Councilor from applying for and receiving Community Development Block Grant (CDBG) funds, provided that the Councilor at issue recuses himself from the Council’s initial consideration of his sister’s grant application.

The petitioner advises that the State Office of Community Development provides funding for housing rehabilitation through its Community Development Block Grant (CDBG) Program. The West Warwick Town Council approves grant applications using guidelines established by the Office of Community Development. Any homeowner who meets the program criteria may apply for and receive funding. The Council initially votes to submit the application pursuant to established criteria, but does not vote on the individual grant applications. The decision to accept a resident’s application and award funds is made by the Office of Community Development after careful evaluation of program criteria. Any dispute with the decision may be directed to the Town Manager. Presently, the only funds available are those for the year 2000 CDBG Grant, which was voted upon and approved by the Council on April 4, 2000.

Under the Code of Ethics, a public official may not have any interest, financial or otherwise, direct or indirect, which is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if he has reason to believe or expect that he or any family member or 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. See R.I. Gen. Laws § 36-14-7(a). He also is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents. See R.I. Gen. Laws § 36-14-5(d). Further, no person subject to the Code or any person within his or her family may enter into a contract 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.” See R.I. Gen. Laws § 36-14-5(h).

The Commission consistently has concluded that public officials and employees may not bid on contracts where they have participated in the bid development process. Under the Code, participation in the bid specification process places the public official or employee in a privileged and/or advantageous position with respect to other bidders. See A.O. 98-65 (finding that Town employees who provided substantive input into a decision to put property to tax sale, or as to requirements of the bids, may not bid on the property).

Additionally, the Commission and the Supreme Court have generally concluded that where a public official’s or employee’s participation in a matter ultimately results in an outcome that will affect him/her, family, business associates, or employers, that the public official or employee is required to recuse or not reap the benefit of their prior action. For instance, the Supreme Court in Celona v. Rhode Island Ethics Commission, 544 A.2d 582, 586 (R.I. 1988), held that the members of the North Providence Town Council violated the Code of Ethics when they enacted a preliminary resolution granting themselves $100 in monthly expense money. Although the resolution required final approval by the General Assembly, the Court found that the Council members had reason to believe or expect that the passage of a resolution would result in a personal financial benefit since, but for, their participation, the General Assembly would not have had the opportunity to consider the amendment to the Town Charter. See also A.O. 99-35 (advising Governor’s Justice Commission VAWA Planning Committee’s members that should recuse where their organizations may be recipient of program grant funds since although the VAWA Planning Committee is not the ultimate decision maker as to subgrant awards, it is an essential step in the process that narrows and directs where funding will be allocated); A.O. 97-51 (advising a legislator serving as a member of the Rhode Island House of Representatives that he may not introduce legislation adding public library funding to fulfill a state imposed mandate given he is employed by a public library); A.O. 98-86 (concluding that Town Councilor could participate in School Department open and public bidding process for a lease provided that he had not participated in or otherwise influenced the bid development process such as affecting the funding available to the School Department for any such leasing arrangement).

In an analogous context, the Commission previously concluded that a West Warwick Councilor could participate in a CDBG Business Assistance Loan program administered by the Town, provided that any loan funds awarded to him would not be allocated from the 1999 grant funds upon which he had voted. See e.g., A.O. 2000-28. There, however, the official himself was applying for the loan for his family’s liquor package store. Here, the Commission concludes that the Code of Ethics would not prohibit a West Warwick Councilor’s sibling from applying for and receiving CDBG funds through the Office of Community Development, provided that the Councilor at issue recuses himself from the Council’s initial submission of her grant application pursuant to established criteria. Therefore, absent some other prohibited involvement or interest, the Code does not prohibit his sister’s application for and/or receipt of a grant award merely because the petitioner is a Town Councilor. Notice of recusal should be filed with both the West Warwick Town Council and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6.

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Related Case Law:

Celona v. Rhode Island Ethics Commission, 544 A.2d 582, 586 (R.I. 1988)