Advisory Opinion No. 2002-20

Re: Mr. William H. Peppes


The petitioner, a Lincoln Parks and Recreation Commission member, a municipal appointed position, requests an advisory opinion as to whether his construction firm, W.H. Peppes General Contractor, Inc., may respond to a Request For Proposals (RFP) published by the Town of Lincoln, other municipalities and/or the State of Rhode Island.


It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a Lincoln Parks and Recreation Commission member, a municipal appointed position, from responding to a Request for Proposals (RFP) published by any state or municipal entity, including the Town of Lincoln, provided that 1) he does not participate in the bid specification process for the RFP in contracts involving the Town of Lincoln; and 2) any contract is awarded pursuant to an open and public bidding process in accordance with R.I. Gen. Laws § 36-14-5(h).

The Lincoln Town Council appointed the petitioner to a non-paid advisory position on the Lincoln Parks and Recreation Commission in September 2001. In his private employment, he is the president of W. H. Peppes General Contractor, Inc. He informs that his company performs approximately 65% public projects and 35% industrial private projects. He represents that the Town Council is responsible for formulating all bid specifications and is the sole voting authority for the selection of Parks and Recreation contracts.

Under the Code of Ethics, the petitioner 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 and employment in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). He may not accept outside employment that will 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). Section 5(h) of the Code provides that public officials, 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 municipal employees and officials seeking to contract with or provide services to a municipality that they only could do so if the municipality 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).

Additionally, the Commission previously has found that public officials 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 the 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).

Here, any contract awards for the State and/or other municipalities would not involve or impact upon the petitioner’s own public body, and he has no ability to extend any improper influence or control over such public entities as a member of the Lincoln Parks and Recreation Commission. Further, he represents that he has no involvement with the Town Council’s development of bid specifications, nor does the Parks and Recreation Commission participate in the review or selection of bids received in response to the Town Council’s RFP’s.

Since no official action would be taken by the petitioner as a member of the Parks and Recreation Commission, in the absence of any improper intersection between the petitioner’s public responsibilities and his private employment interests, the Code does not preclude him from accepting a contract awarded by the Town of Lincoln, the State and/or other municipalities. In accordance with Section 5(h), any such contract must be awarded through an open and public process, including prior public notice and subsequent public disclosure or all proposals considered and contracts awarded. Finally, the prohibitions contained Section 5(e) are inapplicable here given that any actions by the Town of Lincoln relative to a contract award necessarily would be the responsibility of the Town Council, not the Parks and Recreation Commission. See R.I. Gen. Laws § 36-14-5(e).

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