Advisory Opinion No. 2002-13

Re: L. Robert Smith, P.E., F.ASCE

QUESTION PRESENTED

The petitioner, a member of the Rhode Island Board for Professional Engineers, a state appointed position, requests an advisory opinion as to whether he may participate in the Board’s investigation of an engineer with whom the petitioner’s firm previously had business dealings.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a member of the Rhode Island Board for Professional Engineers, a state appointed position, from participating in the Board’s investigation of an engineer with whom his firm previously had business dealings, given that his present relationship with Dennis DiPrete does not constitute a business association.

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. An official will have an interest in substantial conflict with his official duties if it is likely that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-5(a), 7(a). Business associates are defined as individuals or entities joined together to "achieve a common financial objective." R.I. Gen. Laws § 36-14-2(3). Finally, a public official must recuse himself from voting or participating in the consideration and disposition of a matter involving a business associate. See R.I. Gen. Laws § 36-14-5(f).

The petitioner, a professional engineer, is the president of Waterman Engineering Company. He advises that the Rhode Island Board of Registration for Professional Engineers, of which he is a member, currently is investigating charges against Dennis DiPrete, a professional engineer. He represents that Waterman performed work for Mr. DiPrete’s company four years ago. He further represents that, approximately one year ago, Waterman rented a GPS unit from Mr. DiPretes’s company for the purpose of locating wetland flags. He indicates that the work Waterman did for Mr. DiPrete’s company, as well as the work that his company performed for Waterman, is not atypical of local engineering firms’ normal business procedures. Finally, he advises that it is possible that Waterman and Mr. DiPrete’s company may do work for each other in the future.

In past advisory opinions, the Commission has required public officials to recuse from consideration of matters if the official had an ongoing or anticipated business relationship with an individual or entity appearing before his or her public body. See e.g., A.O. 98-142 (finding that a Coastal Resource Management Council member should recuse from participating in matters involving a law firm while he has an ongoing attorney-client relationship with a member of that firm); A.O. 98-117 (concluding an Exeter Town Councilor should not participate in a zoning matter where she has had and likely will have an employment relationship with an attorney appearing before her on a zoning matter); A.O. 94-60 (concluding that a North Kingstown Planning Commission member should not participate in the consideration of a subdivision proposal submitted by an engineer where the member planned to engage in business projects within the immediate future with that engineer).

However, the Commission consistently has found that no potential for a conflict of interest exists when a prior business relationship between a public official and a private party has ended and where there is no ongoing or anticipated future relationship between the parties. In such instances, a public official may participate in matters involving his or her former business associate, assuming no other conflicts are present. See A.O. 96-30 (concluding that a City Councilor could participate in a matter involving an individual he represented more than five years ago as an attorney given that there was neither an ongoing relationship with the individual nor any specific plans to represent the party in the future). See also A.O. 98-25; A.O. 97-7; A.O. 96-68, A.O. 96-62.

In an analogous context, the Commission previously concluded that a Jamestown Town Councilor may participate and/or vote in the Council’s consideration of a bid submitted by an engineering firm, despite the fact that the Councilor’s private engineering firm had previously rented GPS equipment to the firm at issue. See e.g., A.O. 2001-17. There, the bidder had rented a GPS unit and purchased several drill bits from the Councilor’s engineering firm over the course of a one-year period. However, the Commission specifically found that such a relationship did not constitute a business association that would trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 7(a).

After considering the relevant provisions of the Code of Ethics, the Commission concludes that the petitioner may participate in the Board of Registration for Professional Engineer’s investigation of Mr. DiPrete. Here, Waterman Engineering performed work for Mr. DiPrete’s company four years ago and does not have existing contracts or a specific business relationship with that company. Absent some direct and ongoing financial relationship, the normal commercial dealings (i.e., rental of a GPS unit) between the petitioner’s firm and Mr. DiPrete’s company do not rise to the level of business association as defined in R.I. Gen. Laws § 36-14-2(3). See A.O. 99-21 (finding that a Westerly Town Councilor may participate in the review and/or award of a contract, despite the fact that companies that purchase parts from his automobile parts store may respond to the RFP, since his relationship with such companies is not a business association); A.O. 93-21 (concluding that a West Warwick Town Councilor who is a regular customer of a restaurant could participate in the review of an application for a twenty-four hour victualling license for that restaurant absent a significant financial nexus).

Further, while the petitioner indicates that it is possible that the two engineering firms may work together in the future, he does not advise of any present plans for and/or expectation of such dealings. Nor would the mere rental of GPS equipment constitute a business association under the Code. Accordingly, since there is no direct financial nexus between the petitioner’s business and potential Board actions involving Mr. DiPrete, the petitioner does not have an interest that would prohibit his participation in the Board’s investigation.

Code Citations:

36-14-2(3)
36-14-5(a)
36-14-5(f)
36-14-7(a)

Related Advisory Opinions:

2001-17
2001-1
99-141
99-90
99-78
99-21
98-157
98-142
98-141
98-117
98-25
97-7
96-100
96-68
96-62
96-30
96-6
94-60
93-21

Keywords:

Business associate
Business interest
Financial interest