Advisory Opinion No. 2003-5

Re: Robert C. Thibodeau

QUESTION PRESENTED:

The petitioner, a member of the Cumberland School Committee, a municipal elected position, who in his private employment owns and operates a fundraising company, requests an advisory opinion as to whether he may provide services to the Cumberland School District.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Cumberland School Committee, a municipal elected position, who in his private employment owns and operates a fundraising company, may provide services to the Cumberland School District provided that the contract is awarded through an open and public bidding process. See R.I. Gen. Laws § 36-14-5(h). However, if the School Department does not adhere to such a process to select vendors for fundraisers, the petitioner shall not accept business from the School Department.

The petitioner represents that he was elected to the Cumberland School Committee in November of 2002 and was sworn into office on November 18, 2002. He informs that he was a past member of the School Committee but had not served in that capacity for over four years. The petitioner represents that he owns and operates a fundraising company that provides fundraising services for area schools. He advises that in September 2002, prior to his election to the School Committee, he entered into two contracts to provide fundraising services for both the athletic and music departments of the Cumberland School District. The petitioner represents that he provides fundraising services for districts in addition to the Cumberland School District.

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). Additionally, pursuant to R.I. Gen. Laws § 36-14-5(d), the petitioner 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 or a family member. Finally, the Code of Ethics prohibits the petitioner or any person within his family from entering into a contract with any state or municipal agency unless the contract is awarded though an open and public process. See R.I. Gen. Laws § 36-14-5(h).

Under Section 5(h) of the Code of Ethics, public officials or their family members 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 a municipality that they could only 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). 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 fundraising services to departments within the Cumberland School System.

Additionally, the prohibitions affecting the petitioner may extend beyond the public bidding requirement. 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. 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). Therefore, if the Cumberland School District proceeds with an open and public bidding process, the petitioner may submit a bid only if he has not participated in or otherwise influenced the bid development process.

Finally, the petitioner represents that in September 2002, he entered into two contracts to provide fundraising services for both the music and athletic departments in the Cumberland School District. Since those contracts were entered into prior to his November 2002 election, the requirements of Section 5(h) do not apply. However, if matters come before the Cumberland School Committee involving the fundraising contracts, the petitioner must recuse in accordance with §36-14-6 of the Code of Ethics by filing a recusal form with the Cumberland School Committee and the Ethics Commission.

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:

2001-22

99-37

98-86

98-79

98-48

97-72

97-35

Keywords:

Contracts

Private employment