Advisory Opinion No. 2003-3

Re: Alisa Richardson, Director

QUESTION PRESENTED:

The petitioner, a Principal Sanitary Engineer employed by the Department of Environmental Management (DEM) in the Office of Water Resources, a state employee position, who is the owner of Narragansett Research, requests an advisory opinion as to whether her private business may provide information and technology services to offices of DEM, other than Water Resources.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Principal Sanitary Engineer employed by the Department of Environmental Management (DEM) in the Office of Water Resources, a state employee position, who is the owner of Narragansett Research, may provide information and technology services to various offices of DEM other than Water Resources.

The petitioner represents that she is the Principal Sanitary Engineer in the Office of Water Resources. In previous years, petitioner’s duties encompassed many computer-related activities. However, she represents that approximately 2 years ago, DEM formed a separate Information and Technology Office and at that time the majority of her IT duties were transferred. Since that time, the petitioner states that she currently possess some minimal computer responsibilities that occupy approximately 5% of her responsibilities. Her primary duty currently is to manage the minimum flow requirements for streams. She represents that she is currently writing policy to determine the stream flow that the aquatic habitat requires to survive.

The petitioner represents that she is the owner of a small software design and consulting firm, Narragansett Research. Narragansett Research’s primary focus is designing and building smaller Access Databases. Additionally, the petitioner states that her firm consults with customers to determine their data requirements as well as fixing printing problems and faulty hard drives. Due to the petitioner’s ability to decipher water quality data and its impact on the environment, she represents that Narragansett Research’s specialty is water quality data. The petitioner seeks an advisory opinion as to whether Narragansett Research may contract with other departments of the DEM to assist in database design and data development.

Under the Code of Ethics, the petitioner may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if she has reason to believe or expect that she or any family member or business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. See R.I. Gen. Laws § 36-14-7(a). Additionally, the Code provides that the petitioner shall not accept other employment that will either impair her independence of judgment as to her official duties or induce her to disclose confidential information acquired by her in the course of and by reason of her official duties. See R.I. Gen. Laws § 36-14-5(b). Further, she may not use her public office or information received from her public office to obtain financial gain, other than that provided by law, for herself, a family member, business associate or private employer. See R.I. Gen. Laws § 36-14-5(d). Finally, the Code of Ethics prohibits a public official, her family, business associates, or any business entity where the public official's family or business associate has a 10% equity interest or a $5,000 cash value interest, from entering into a contract with an agency unless the contract has been awarded through an open and public process, including public notice and subsequent public disclosure of all proposals considered and contracts awarded. See R.I. Gen. Laws § 36-14-5(h).

Under Section 5(h) of the Code of Ethics, public officials may enter into contracts with state or municipal agencies as long as they are awarded through an open and public process, including public notice and subsequent public disclosure of all proposals considered and contracts awarded. The Commission consistently has advised municipal employees seeking to contract with or provide services to an agency that they could only do so if the agency 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). The only exceptions to this strict prohibition recognized by the Commission have been for emergencies and isolated purchases of nominal value. See A.O. 98-48; A.O. 98-79. Therefore, absent an open and public bidding process, the petitioner may not enter into a contract to provide computer services to departments within the DEM.

In previous advisory opinions, the Commission has given its approval for employees to accept outside employment, provided that (a) the employees’ official duties for their agency do not directly relate to their private employment; (b) they complete the work before or after their normal working hours; and (c) the employees do not appear before their own agency. See A.O. 99-102 (advising that a Providence Water Supply Board employee may work for a computer vendor since he did not have any authority or control over the vendor for work provided to the Water Supply Board); A.O. 2000-76 (opining that a wetlands scientist employed by the Department of Environmental Management may accept private employment as a wetlands scientist while retaining his current employment and in that private employment he may have contact with the other divisions/programs in the DEM); A.O. 98-135 (concluding that a Providence employee in the Forest Management Program at the Scituate Reservoir may provide services to private landowners if he does not exercise authority over those landowners in his public employment); A.O. 96-31 (concluding that two Social Caseworkers for the Department of Children, Youth and Families (DCYF), who in their private capacities operated a graphic design studio on a part-time basis, could provide graphic design services to residential facilities provided that they completed all graphic design services after normal working hours and other officials at DCYF decide where, if necessary, to place developmentally delayed children); A.O. 97-98 (advising Superior Court Clerk that she could accept other employment so long as she did not receive special access of information from the Court in performing her private employment).

The Commission concludes that the petitioner may provide information and technology services to offices of the DEM other than Water Resources, provided that all work is performed on her own time, without the use of public resources and any contract is subject to an open and public bidding process. Her present employment with the DEM does not substantially involve information and technology, as the DEM previously transferred such responsibilities when it formed the Information and Technology Office. Furthermore, the petitioner represents that she will not provide services for the Office of Water Resources. Given that she would not be acting in matters in her private capacity where she exercises authority in her public capacity for the DEM, she would not be in substantial conflict with her duties in the public interest nor should her judgement be impaired as to her public duties.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(h)

36-14-7(a)

Related Advisory Opinions:

2002-34

2001-11

2000-76

2000-27

99-102

99-70

98-169

98-154

98-135

98-103

98-79

98-48

97-98

97-93

97-72

97-1

96-31

Keywords:

Contracts

Private Employment