Advisory Opinion No. 2004-11 Re: Robert Wotherspoon QUESTION PRESENTED: The petitioner, a member of the Town of Lincoln School Building Commission, a municipal elected official, requests an advisory opinion regarding whether the Code of Ethics limits or prohibits his participation in Building Commission matters given his ownership of Interbuild, Inc., a carpentry subcontracting business. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Town of Lincoln School Building Commission, a municipal elected official, is not prohibited from serving as a member of the School Building Commission by reason of his ownership of a carpentry subcontracting business. However, the petitioner's participation in certain School Building Commission matters may be limited if the interests of his business associates would be impacted by such participation. The petitioner is an elected member of the Town of Lincoln School Building Commission ("Building Commission"). He represents that the primary purpose of the Building Commission is to assist the Town in the planning and construction of a new middle school. The Building Commission will interview and select a project manager to oversee construction, and will also select a project architect. Once the plans and construction documents are completed, the Town will solicit public bids for a general contractor to construct the school. The Commission may become involved in establishing requirements and bid specifications for this position. Once construction begins, the Building Commission will periodically meet with the program manager to review progress and requisitions for payment, and will transmit reports and recommendations to the Town Administrator. The petitioner is the president and owner of Interbuild, Inc., a Lincoln based carpentry subcontractor in the commercial construction market, including public buildings and schools. He states that one of the Building Commission requirements is that no Commission member may be a contractor or vendor to the school project. Accordingly, the petitioner does not seek to provide any services relating to the school project. However, the petitioner states that persons with whom he has worked on past projects will likely be applicants for the program manager, architect and general contractor positions on the Lincoln school project. The petitioner asserts that it is highly unlikely that such persons would have contracted directly with the petitioner on these past projects, because the petitioner is generally a second-tier subcontractor who is hired by a first-tier carpentry subcontractor. Nevertheless, since the Building Commission will evaluate these candidates, the petitioner asks whether he may participate in such evaluation and selection of persons with whom the petitioner may have worked with on past projects. The Code of Ethics provides that a public official shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction which is in substantial conflict with the proper discharge of his or her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the public official has reason to believe or expect that he or she or any family member or business associate, or any business by which he or she is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. R.I. Gen. Laws § 36-14-7(a). Additionally, the Code provides that the public official shall not accept other employment which will either impair his or her independence of judgment as to his or her official duties or induce him or her to disclose confidential information acquired by him or her in the course of and by reason of his or her official duties. R.I. Gen. Laws § 36-14-5(b). Section 5(f) of the Code requires a business associate to notify the agency of the nature of his/her business relationship with the public official and requires the public official to recuse her/himself from voting or participating in consideration and disposition of the matter at issue. An individual is a "business associate" of a public official if the official and that individual are "joined together" to "achieve a common financial objective." R.I. Gen. Laws § 36-14-2(3). The petitioner is considered to be a "business associate" of any person or entity with whom he is engaged as a subcontractor. This relationship exists during the time the subcontracting work is being performed, and until the petitioner is paid and no further subcontracting work is anticipated. See A.O. 99-11. To the extent that an applicant is a past business associate of the petitioner with no anticipated future association, or is merely someone with whom the petitioner has in the past worked alongside on other projects, the petitioner is not required to recuse from participating in the Building Commission's evaluation of such person's application. However, if any of the petitioner's current or anticipated business associates are applicants for any of the positions subject to the Building Commission's review and recommendation, then the petitioner is required to recuse from participation in the review and selection process for such position. See A.O. 2003-24. In such event, the petitioner should file a recusal notice in accordance with Section 6 of the Code with the Building Commission and with the Ethics Commission. Code Citations: 36-14-2(3) 36-14-5(a) 36-14-5(b) 36-14-5(f) 36-14-6 36-14-7(a) 36-14-6001 Related Advisory Opinions: 2003-24 2002-61 2002-40 2001-4 99-95 99-78 99-11 98-159 98-142 98-141 98-117 98-25 97-112 97-7 96-100 96-68 96-62 96-30 95-81 94-60