Advisory Opinion No. 2002-50

Re: Ayo Osimboni

QUESTION PRESENTED

The petitioner, a Rhode Island Department of Transportation employee in the Bridge Design Section, a state employee position, requests an advisory opinion as to whether the Code of Ethics prohibits his private company from performing design and construction management services for local cities and towns or other public and private entities.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the private business of the petitioner, a state employee in the Rhode Island Department of Transportation, Bridge Design Section, may perform design and construction management services for local cities and towns or other public and private entities, subject to certain restrictions.

The petitioner represents that he currently is employed on a full-time basis by the Rhode Island Department of Transportation (“RIDOT”) in the Bridge Design Section. He states that he also is part owner of a small design and construction management company, Provcity Consultants, that specializes in traffic and pavement management, project management, environmental management, geotechnical management and bridge inspection. Provcity Consultants wishes to perform design and construction management services for local towns and cities, construction companies, private and public organizations and private individuals. The petitioner inquires whether the Code of Ethics limits or prohibits such work by his business given his public employment with the RIDOT.

The Code of Ethics provides that the petitioner shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction that is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the petitioner has reason to believe or expect that he or any family member or business associate, or any business by which he is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. R.I. Gen. Laws § 36-14-7(a). Additionally, the Code provides that the petitioner shall not accept other employment which will either impair his independence of judgment as to his official duties or induce him to disclose confidential information acquired by him in the course of and by reason of his official duties. R.I. Gen. Laws § 36-14-5(b). Further, he may not use his public position or information received from his public position to obtain financial gain, other than that provided by law, for himself, a family member, business associate or private employer. See R.I. Gen. Laws § 36-14-5(d). Finally, neither petitioner, his business associates nor any business in which he has a ten percent (10%) or greater equity interest or five thousand dollar ($5,000) or greater cash value interest may enter into any contract with any state or municipal agency unless such contract is 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).

Applying the relevant Code provisions to the facts as represented by petitioner, the petitioner’s private company may perform design and construction management services for local cities and towns or other public and private entities subject to the following conditions. Firstly, to the extent that Provcity Consultants becomes associated with any project that comes before the Bridge Design Section of the RIDOT, whether such project is public or private, for any purpose including review, approval or consultation, the petitioner is required to recuse from participation as a RIDOT employee. Notice of such recusal should be filed with the RIDOT in accordance with R.I. Gen. Laws § 36-14-6. Secondly, all work on behalf of Provcity Consultants must be conducted outside of normal RIDOT working hours, and without the use of public resources and equipment. Further, any contracts entered into between Provcity Consultants and any state or municipal agency must be the result of an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded.

Finally, the petitioner may not allow his private business interests to interfere with his independence of judgment as to his public duties, and may not use non-public or confidential information received by reason of his public duties to obtain financial gain. The Commission cautions the petitioner, however, that these restrictions are based upon the general nature of his request for an advisory opinion and may not apply to the specific facts of any given contract. Accordingly, he may wish to consult with Commission staff and request additional advisory opinions based upon specific facts relative to individual contracts.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(h)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2000-76

99-102

99-70

99-39

98-169

98-154

98-103

97-98

97-93

97-1

96-31

Keywords:

Private Employment