Advisory Opinion No. 2006-2 Advisory Opinion No. 2006-2 Re: Marie Evans Esten QUESTION PRESENTED: The petitioner, who is currently employed by the University of Rhode Island as a contract employee and also the owner of Loon Environmental LLC, requests an advisory opinion as to whether her private business may respond to Requests For Proposals published by the University of Rhode Island and other state agencies if she is hired as a part-time, non-benefited state employee. RESPONSE : It is the opinion of the Rhode Island Ethics Commission that the petitioner, currently employed by the University of Rhode Island as a contract employee and the owner of Loon Environmental LLC, may respond to Request For Proposals published by the University of Rhode Island and other state agencies if she accepts employment at the University of Rhode Island as a part-time, non-benefited state employee. The petitioner represents that she is currently employed by the University of Rhode Island (“URI”) as a contract employee of the URI Cooperative Extension Non-Point Education for Municipal Officials (“NEMO”) group. The petitioner advises that her duties and responsibilities for NEMO generally consist of assisting the program leader with technical tasks including modeling, GIS and researching storm water controls. The petitioner informs that she has also completed contract work for the URI Watershed Watch program (“Watershed program”) which included preparation of laboratory and field plans as well as data analysis. The petitioner represents that she is the owner of Loon Environmental LLC (“Loon”), which is an environmental consulting firm that handles similar functions as were performed by the petitioner for NEMO and the Watershed program. The petitioner advises that her contract with URI expires in December of 2005 and NEMO has offered the petitioner a part-time, non-benefited position as a research associate. The petitioner seeks an advisory opinion as to whether Loon can respond to Requests for Proposals (“RFP) published by URI or any other state agency without being in violation of the Code of Ethics. The petitioner expressly represents that Loon will not respond to any RFP published by NEMO or the Watershed program. The petitioner further represents that she will perform any work associated with Loon on her own time and she will not use any public resources. 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). The Commission consistently has advised state and 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. In an analogous advisory opinion, the Commission opined that a Principal Sanitary Engineer employed by the Department of Environmental Management (DEM) in the Office of Water Resources, a state employee position, who also owned Narragansett Research, could provide information and technology services to various offices of DEM other than Water Resources provided that she performed all work on her own time without the use of public resources and any contract offered would be subject to an open and public bidding process. See A.O. 2003-3. See also 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 services to URI or any other state agency. 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. 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). The Commission concludes that the petitioner may respond to RFPs published by URI and other state agencies provided that all work is performed on her own time and without the use of public resources, and provided that any contract is subject to an open and public bidding process. Furthermore, the petitioner represents that she will not respond to any RFP published by NEMO or the Watershed program. Given that she would not be acting in matters in her private capacity where she exercises authority in her public capacity for NEMO, she would not be in substantial conflict with her duties in the public interest nor should her judgment 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: 2003-3 2002-34 2001-11 2000-76 2000-27 99-102 99-70 98-169 98-154 98-135 Keywords: Contracts Private Employment