Advisory Opinion No. 2001-75

Re: Jeffrey A. Lanphear, Esq.


Legal Counsel for the Senate Minority Office requests an advisory opinion on behalf of the petitioner, a legislator serving as a State Senator, a state elected position, as to whether he may participate in the Forest Legacy Program in his private capacity as a dairy farmer, given that it is administered by the Rhode Island Department of Environmental Management.


It is the opinion of the Rhode Island Ethics Commission that the petitioner, a legislator serving as a State Senator, a state elected position, may apply for and receiving funding under the Forest Legacy Program administered by the Rhode Island Department of Environmental Management.

In his private capacity, the petitioner is self-employed dairy farmer for the Breene Hollow Farm in West Greenwich. He advises that he has applied for funding under the Forest Legacy Program, which is administered by the Rhode Island Department of Environmental Management (DEM) and funded by a grant from the United States Forest Service. The program enables owners of forested lands to sell development rights or easements to the state. To qualify for the program, a property owner must meet certain criteria evaluated by the DEM’s State Forest Stewardship Coordinating Committee and parcels will be evaluated and ranked based on how well they meet the goals of the Forest Legacy Program. The Program’s primary goal is to prevent the loss of traditional forest values and land uses that result from the conversion of significant forest tracts to non-forest uses, such as for commercial or residential development. He represents that the Program is open to any owner of privately held, forested land of 25 acres of more in size in the State’s designated Forest Legacy Areas.

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 business associate of said person may enter into a contract with a 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. 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 generally have concluded that where a public official or employee’s participation in a matter ultimately results in an outcome that will affect him/her, family, business associates, or employers, the public offcial 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 they 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 sub-grant 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 if he has 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).

The Commission concludes that the petitioner may apply for and receive funding under the Forest Legacy Program, as administered by the DEM and funded by the United States Forest Service. As a member of the General Assembly, the petitioner has no involvement in establishing selection criteria for the Program, which is funded through a grant from the federal government. In the event that his application is granted, and during the pendency of same, the Code of Ethics requires his recusal on any matters involving the Program that appear before him as a legislator. Notice of recusal should be filed with both the State Senate and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6.

Code Citations:






Related Advisory Opinions:























Related Case Law:

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


Business interest

Financial interest


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