Advisory Opinion No. 2004-3

Re: Jametta O. Alston


The Cranston City Solicitor requests an advisory opinion on behalf of the petitioner, Mayor of the City of Cranston, a municipal elected position, as to whether, in response to an open and public bid process, the City may award a property management contract to the sole responsive bidder, despite the fact that the bidder is an acquaintance of the petitioner who has contributed to his campaign and with whom he has prior business associations.


It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not bar the City of Cranston from awarding a property management contract to an individual with whom the petitioner, Mayor of the City of Cranston, a municipal elected position, has prior business associations, provided that 1) any contract awarded is subject to an open and public bidding process; and 2) the petitioner did not participate in the bid specification or review process. See R.I. Gen. Laws §§ 36-14-5(a), 5(d) and 5(h). Absent other factors, the bidder’s social relationship with the petitioner and his prior contributions to the petitioner’s campaign do not constitute an inherent conflict of interest.

The Cranston City Solicitor advises that on or about November 5, 2003 the City of Cranston published a Request for Proposals (RFP) for a property manager for the Cranston Department of Public Works’ Highway Garages, located at 929 and 935 Phenix Avenue in Cranston. The Solicitor informs that the RFP issued by the Public Facilities Management Foundation (PFMF) was prominently advertised in The Providence Journal and bids were received through a sealed, competitive bid process. The PFMF is a five member quasi-public corporation, consisting of the City Solicitor, the Director of Administration, the Director of Public Works, the Finance Director and the City Council President. The Solicitor states that the City Council President is the only PFMF member who is not a mayoral appointee.

The Solicitor represents that the PFMF received only one response to the RFP, which was opened on November 18, 2003. Bruce D. Lane submitted the sole bid on behalf of Bruce Lane & Co. and Bruce Lane Maintenance Ltd., real estate and commercial property maintenance companies in which he is the principal. Mr. Lane states that his company has been maintaining and managing properties in Cranston since 1983. The Solicitor indicates that Mr. Lane is an acquaintance of the petitioner, Mayor Stephen P. Laffey, and has contributed to the petitioner’s campaign.

The Solicitor further informs that Mr. Lane has performed work at the petitioner’s residence in the past and recently acted as the petitioner’s real estate broker in his purchase of a new home. With regard to said purchase, the Solicitor states that the closing has already occurred. Based upon these facts, as well as the PFMF’s membership consisting of four mayoral appointees, the petitioner requested that the PFMF resubmit the RFP to bid. The Solicitor advises that Mr. Lane’s bid was submitted pursuant to proper RFP protocol and it reflects significant cost savings to the City in comparison to its current property management contract. She further advises that the ultimate decision as to the contract award will be made by the PFMF. The petitioner seeks the Commission’s guidance regarding the ethical ramifications of the potential contract award.

Under the Code of Ethics, a public official 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. R.I. Gen. Laws § 36-14-5(a). An official will have an interest in substantial conflict with his official duties if it is likely that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, a family member, a business associate, an employer, or any business which the public official represents. R.I. Gen. Laws § 36-14-7(a).Commission Regulation 36-14-6001 provides that a public official has reason to believe or expect that a conflict of interest exists when it is “reasonably foreseeable.” A public official also may not use his public employment or confidential information received through his public employment to obtain financial gain for himself, his family, business associates or for a business by which he is employed or which he represents. R.I. Gen. Laws § 36-14-5(d). Business associates are defined as individuals or entities joined together to "achieve a common financial objective." R.I. Gen. Laws § 36-14-2(3).

Public officials, as well as their relatives and business associates, may not enter into contracts with any state or municipal agency “unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure or all proposals considered and contracts awarded.” R.I. Gen. Laws § 36-14-5(h). Further, a public official must recuse himself from voting or participating in the consideration and disposition of a matter involving a business associate. See R.I. Gen. Laws § 36-14-5(f). Finally, the Code provides that a public official shall not solicit or accept gifts, loans, campaign contributions, or a promise of future employment based on any understanding that his vote, official action, or judgment would thereby be influenced. R.I. Gen. Laws § 36-14-5(g).

In the first instance, the Commission must determine whether any relationship currently exists between the petitioner and Mr. Lane that would trigger the prohibitions contained in the Code of Ethics. A social relationship or personal acquaintance between the parties does not, in and of itself, create an inherent conflict of interest within the meaning of the Code. See A.O. 92-72. Also, absent any evidence of an impermissible quid pro quo, the fact that Mr. Lane previously contributed to the petitioner’s mayoral campaign does not bar his receipt of the subject contract award.

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 subdivisions proposal submitted by an engineer where the member planned to engage in business projects with that engineer in the immediate future).

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 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. 98-25 (opining that a Bristol Planning Board member may participate in a matter in which an attorney represents an applicant before that Board, despite the fact said attorney previously represented the member on an unrelated matter); A.O. 97-112 (finding that North Providence Town Councilors may consider an application for Town Solicitor from an attorney who had represented them privately in complaint proceedings before the Ethics Commission, provided that the attorney/client relationship has ended). Also A.O. 96-68; A.O. 96-62; A.O. 96-30.

Here, the petitioner represents that Mr. Lane previously performed work at his residence. Provided that all work has been completed, no bills remain outstanding for services rendered and the parties do not anticipate the performance of specific additional work in the near future, no business association presently exists between the parties. Additionally, the petitioner states that Mr. Lane recently acted as his real estate agent in the purchase of residential property for which the closing has already occurred. To the extent that the property has closed, no bills/fees remain outstanding and the parties do not anticipate any specific real estate dealings in the near future, they are no longer business associates under the Code of Ethics.

In previous advisory opinions, the Commission has advised public employees and officials seeking to contract with or provide services to the state or a municipality that they only could do so if the public entity 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); and A.O. 98-86 (concluding that a Westerly Town Councilor could 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).

In addition, the Commission has found that public officials or employees 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. 95-60 (finding Narragansett Town Engineer would violate the Code of Ethics were he to accept a subcontract from Alpine Ski & Sports in the event that said company, also his employer, is awarded a contract from the Narragansett Town Council to provide scuba diving training to the Narragansett Police Department Dive Team given that the petitioner provided input as to the training involved for scuba diver certification).

Based upon the petitioner’s representations, he is not a member of the PFMF and had no involvement in the bid specification or review process. The contract at issue was subject to an open and public bidding process, consistent with the requirements of section 5(h). Further, the ultimate decision regarding the contract award will be made by the PFMF. In this instance, the petitioner is neither responsible for the decision as to the awarding of the contract, nor does he participate in the process that leads to its award.

Therefore, absent some other prohibited involvement or interest, the Code does not prohibit the contract award merely because the successful bidder is the petitioner’s former business associate.

Finally, in the event that the petitioner has subsequent business dealings with Mr. Lane and/or his company, he should seek further guidance from the Commission prior to participating in any matters involving or impacting the City’s property management contract.

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Business Associate

Code Jurisdiction


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