Advisory Opinion No. 2003-1

Re: George H. Gifford, III

QUESTION PRESENTED:

The petitioner, a Project Manager for the Town of Cumberland, a municipal employee position, and president and owner of a landscape architecture and environmental planning firm, requests an advisory opinion as to whether he may participate in the Town’s management and coordination of a project being completed by his own firm.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Project Manager for the Town of Cumberland, a municipal employee position, and president and owner of a landscape architecture and environmental planning firm is prohibited from participating in the Town’s management and coordination of a project being completed by his own firm.

The petitioner is the part-time Project Manager of the Town’s new growth management initiative, assisting the Planning Department on matters concerning future growth planning for the Town. He represents that his position is purely advisory and does not involve any decision-making authority. Additionally, in the petitioner’s private employment, he is the president and owner of a small landscape architecture and environmental planning firm in Cumberland. He informs that his client base includes municipalities in addition to private developers. The petitioner states that several years ago, prior to petitioner’s employment with the Town of Cumberland, the Town hired his firm to prepare design plans and specifications for the Town’s Lonsdale Village streetscape revitalization project. He represents that after his firm was hired the project became a multi-phase development. He indicates that the project is now in the second phase of development which is funded by the Rhode Island Department of Transportation (RIDOT). Due to strict RIDOT guidelines, the petitioner represents that the second phase requires additional work that was not included in the agreement his firm had with the Town of Cumberland. As a result, his firm must request a change order to the original project scope.

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 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, 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 may not accept other employment that will either impair his independence of judgment as to his official duties or employment or require him to disclose confidential information acquired by him in the course of his official duties. See R.I. Gen. Laws § 36-14-5(b). He 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).

In past advisory opinions, the Commission has prohibited public officials from overseeing the work performed by family members. See AO 97-49 (opining that the Community Development Coordinator for the City of Warwick is prohibited from overseeing, or having any involvement that would require him to exercise discretion regarding, the contract awarded to the architectural firm owned and operated by his uncle and first cousins); A.O. 95-116 (concluding that the Senior Building Construction Inspector for the University of Rhode Island could subcontract with or employ his brother to perform work under an awarded contract provided he recused himself from any matter concerning the contract that would require him to exercise discretion, as compared to ministerial acts, and another individual is assigned to oversee and issue payment for the work performed under the contract); and A.O. 98-79 (opining that if a contract is awarded to repair fire apparatus to a company with a familial relationship to the Chief and Assistant Chief the Code prohibits the Chief and Assistant Chief from overseeing the work or exercising any discretion).

Similarly, the Commission previously has found that public officials may enter into contracts with municipalities provided that they are not involved in the bid specifications and supervision of the project. See A.O. 98-46 (holding that a New Shoreham School Committee member whose private employment is as a general contractor may bid on and be awarded a contract to construct an addition to the School provided that he recuses on all matters regarding the addition); and A.O. 97-83 (holding that the company owned by the spouse of the Chief of the Office of Strategic Planning and Policy for the Department of Environmental Management may bid on and be awarded projects under the petitioner’s jurisdiction provided that she recuse from participating and another Chief performs oversight).

Accordingly, consistent with these previous advisory opinions, and based upon the above-referenced provisions of the Code of Ethics, the petitioner is prohibited from participating in the management and coordination of a project being completed by his own firm. Notice of recusal should be filed with both the Ethics Commission and the Town of Cumberland in accordance with R.I. Gen. Laws § 36-14-6. Furthermore, the Town must designate an alternate person, not a subordinate of the petitioner, to manage and coordinate the project being completed by the petitioner’s firm.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2002-18

2001-48

99-37

98-79

98-46

97-83

97-49

95-116

Keywords:

Contracts

Private employment

Recusal