Advisory Opinion No. 2001-22 Re: William J. Hall QUESTION PRESENTED The petitioner, a Coventry Town Councilor, a municipal elected position, requests an advisory opinion as to whether his company, Coventry Tee’s, may submit a bid to provide tee shirts for the Department of Parks and Recreation’s Summer Program. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner’s company, Coventry Tee’s, may submit a bid to provide tee shirts for the Department of Parks and Recreation’s Summer Program, provided that all contracts are awarded through an open and public bidding process. See R.I. Gen. Laws § 36-14-5(h). Further, the petitioner must recuse himself from participation and/or vote on the bid recommendation and/or contract award. In the event that Coventry Tee’s is awarded the contract, various Code provisions prohibit his official action on matters before the Town Council. See R.I. Gen. Laws §§ 36-14-5(a), 5(b), and 7(a). Section 5(e) of the Code further prohibits him from appearing before the Council regarding the contract, or matters arising thereunder, for a period of one year after leaving his office. Since April 1993, the petitioner has been a co-owner of Coventry Tee’s, a local business that sells screen-printed and embroidered hats and shirts. He indicates that Coventry Tee’s has been awarded the bid to print tee shirts for the Coventry Parks and Recreation Summer Program for six of the past eight years, all prior to his election to the Town Council in November 2000. Once bids are solicited, he advises that the Director of the Department of Parks and Recreation makes a bid award recommendation to the Town Council for its approval. Under the Code of Ethics, a public official may 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 in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). He may not accept outside employment that would impair his independence of judgment as to his official duties or employment. See R.I. Gen. Laws § 36-14-5(b). He also may not use his public employment or confidential information received through his public employment to obtain financial gain for himself or for a business which he represents. See R.I. Gen. Laws § 36-14-5(d). Additionally, Section 5(h) of the Code provides that public officials and employees, as well as their relatives and business associates, may not enter into contracts withany 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’s company, Coventry Tee’s, may submit a bid to provide tee shirts for the Department of Parks and Recreation’s Summer Program provided, however, that all contracts are awarded through an open and public bidding process. See R.I. Gen. Laws § 36-14-5(h). As a Town Councilor, the petitioner has no involvement with the Parks and Recreation Department’s development of bid specifications. However, he must recuse himself from participation and/or vote on the Council’s review of the Department’s bid award recommendation and/or the final selection and contract award. If Coventry Tee’s submits a bid, pursuant to R.I. Gen. Laws § 36-14-5(e)(4), the petitioner may not appear personally before the Council 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. In the event that Coventry Tee’s is awarded the contract through an appropriate open and public process, the Code prohibits the petitioner's appearance before the Council regarding the contract or any matters arising thereunder. See R.I. Gen. Laws § 36-14-5(e). While this would not prevent him from submitting bills to the Town, a ministerial task, in the event of a breach of the contract or other substantive dispute, he may not appear before the Council to represent his company’s interests. Further, he may not 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 his duties of employment in the public interest as prohibited by R.I. Gen. Laws § 36-14-5(a). Further, the Commission concludes that the petitioner should recuse himself from participating and/or voting on the Parks and Recreation Director’s salary. Determining said salary, where the Director makes a bid award recommendation to the Council, would constitute a substantial conflict of interest and would likely impair the petitioner’s independence of judgment. Notice of recusal should be filed both with the Ethics Commission and the Town of Coventry in accordance with R.I. Gen. Laws § 36-14-6. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-5(e) 36-14-5(h) 36-14-6 36-14-7(a) Related Advisory Opinions: 00-40 00-11 99-146 99-83 98-123 98-112 98-95 98-90 98-86 98-79 98-65 98-61 98-50 98-46 97-148 97-136 97-122 97-90 97-83 97-72 97-66 97-50 97-48 97-37 97-24 97-15 95-90 95-60 95-24 93-87 89-88 Keywords: Business interest Contracts Financial interest Recusal