Advisory Opinion No. 2003-24

Re: Charles J. Vaillancourt


The petitioner, a Middletown Town Councilor, a municipal elected position, requests an advisory opinion as to whether he may participate in the evaluation and award of contractor bids on Town projects if one or more of the bidders are contractors with whom he has had a past business relationship and with whom he anticipates having a future business relationship.


It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Middletown Town Councilor, a municipal elected position, may not participate in the evaluation and award of contractor bids on Town projects when one or more of the bidders are past business associates with whom he anticipates having future business relationships.

The petitioner represents that he is the owner of Charles J. Vaillancourt General Contractors. He advises that he routinely subcontracts for excavation, paving, installation of subsurface drains, sewers, septic systems, etc. He informs that while he may utilize one or more subcontractors regularly, all work is on a job-by-job basis, and he does not engage in joint ventures or share risks and/or profits with the subcontractors on any job. The petitioner represents that a number of the subcontractors he routinely utilizes occasionally bid on Town projects. Given the petitioner’s past and likely future business relationship with various subcontractors, the petitioner seeks guidance as to whether he may participate in bid selection when such contractors submit bids to the Town.

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). The petitioner will have an interest in substantial conflict with his official duties if he has reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(a). Additionally, the Code provides that the petitioner has reason to believe or expect a conflict of interest exists if it is "reasonably foreseeable" that he, a family member, employer, or business associate will be financially impacted by his official action. To be "reasonably foreseeable" the probability must be greater than "conceivable," but the impact need not be certain to occur. See Commission Regulation 36-14-6001.

Further, R.I. Gen. Laws § 36-14-5(d) prohibits an official from using his position or confidential information received though his position to obtain financial gain, other than that provided by law, for himself, a business associate or any person within his family. Also, an official may not participate in a matter concerning or presented by a business associate unless the associate first advises the official's agency of the nature of the relationship and the official recuses himself from voting or otherwise participating in his agency's consideration of the matter at issue. See R.I. Gen. Laws § 36-14-5(f). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3).

In past advisory opinions, the Commission has required public officials to recuse themselves from participation in a matter if the official has an ongoing or anticipated business relationship with an individual or entity appearing before his or her public body. See A.O. 98-142 (finding that a Coastal Resource Management Council member must recuse from participating in matters involving a law firm while he has an ongoing attorney-client relationship with a member of that firm); A.O. 98-117 (concluding that an Exeter Town Councilor may not participate in a zoning matter where she has had and will likely have an employment relationship with an attorney appearing before her on a zoning matter); A.O. 97-7 (concluding that a member of the Individual Sewage Disposal System Technical Review Committee must recuse himself from consideration of matters where the member currently provides consulting work for the company that is before the Board); A.O. 94-60 (concluding that a North Kingstown Planning Commission member may not participate in the consideration of a subdivision proposal submitted by an engineer where the member planned to engage in business projects with that engineer in the immediate future).

However, the Commission consistently has found that no potential for a conflict of interest exists when a prior business relationship between a public official and a private party has ended and where there is no ongoing or anticipated future relationship between the parties. In such instances, a public official may participate in matters involving his or her former business associate assuming no other conflicts are present. See A.O. 96-30 (concluding that a City Councilor could participate in a matter involving an individual he represented more than five years ago as an attorney given that there was neither an ongoing relationship with the individual nor any specific plans to represent the party in the future). See also A.O. 98-25; A.O. 97-7; A.O. 96-62; A.O. 96-68.

Here, the petitioner represents that numerous contractors routinely provide subcontracting services for him. Therefore, the petitioner and the subcontractors are business associates as defined under the Code of Ethics. As such, the petitioner must recuse in the evaluation and award of contractor bids on Town projects when the bidder is a contractor with whom he has had a past business relationship and with whom he anticipates having a future business relationship in the near future. Notice of recusal should be filed both with the Middletown Town Council and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

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