Advisory Opinion No. 2006-47 Advisory Opinion No. 2006-47 Re: David M. D’Amico, P.E. QUESTION PRESENTED: The petitioner, Chairman of the Johnston Planning Board, a municipal appointed position, who in his private employment is a civil engineer, requests an advisory opinion as to whether his employer may be hired by the Town of Johnston to serve as project facilitator to the Cherry Hill Neighborhood Sewer Extension Project, notwithstanding that he will be assigned by his employer to lead the project. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner’s employer from being hired by the Town of Johnston to serve as project facilitator to the Cherry Hill Neighborhood Sewer Extension Project, notwithstanding that he will be assigned by his employer to lead the project. The petitioner was appointed by the Mayor to the Johnston Planning Board (hereinafter “the Planning Board”) in 1999. He informs that the Town of Johnston (hereinafter “the Town”) is currently involved in a sewer extension project (hereinafter “the sewer project”) in the Cherry Hill neighborhood. During telephone conversations with Commission staff, the petitioner advised that Cataldo Associates was awarded the contract after a public bid in 2004. The petitioner represents that the Town Council approved the funding for the sewer project. The petitioner further represents that final approval of the sewer project will be given by the Town Council and will not require approval from either the Planning Board or the Zoning Board. The petitioner advises that he has been employed as a civil engineer in the engineering firm of Joe Casali Engineering, Inc. (hereinafter “Casali”) since June 1, 2006. He informs that prior to his employment with Casali, he was employed by Cataldo Associates. The petitioner advises that in addition to his position as a civil engineer with Casali, he also serves as a Principal and will eventually be made a partner in the firm. The petitioner informs that the Town wishes to hire Casali as a project facilitator to the sewer project. He explains that the project facilitator will review plans and specifications, cost estimates, monitor design schedules and provide expertise for the design of the sewer project. The petitioner represents that he will serve as the project facilitator to the sewer project and that he will be supervised by the Johnston Building Official. The petitioner represents that the Building Official does not appear before the Planning Board. Finally, the petitioner advises that he lives in the Cherry Hill neighborhood but that he, unlike most of his neighbors, already has a sewer connection. 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 or employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). A public official will have an interest in substantial conflict with his official duties if he has a 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). R.I. Gen. Laws § 36-14-5(d) prohibits the petitioner from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents. Here, as a member of the Planning Board the petitioner has no decision making authority or any official involvement whatsoever in the sewer project. Therefore, his private work on the sewer project is not in conflict with his duties on the Planning Board. The Code of Ethics also provides that the petitioner may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. See R.I. Gen. Laws § 36-14-5(e)(1), (2). Section 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner has officially severed his position with the agency. The Commission consistently has concluded that under the very strict, but very clear, language of Section 5(e) public officials and employees may not appear before their own agency or board before the expiration of one year from their date of separation. Here, however, the sewer project would not require the petitioner or his employer to appear before the Planning Board. Rather, it is the Town Council who supervises, allocates the funding for, and gives final approval to the sewer project. The last issue concerns the fact that the petitioner will be working in his own neighborhood and the likelihood that he will therefore be benefited by the sewer project. Once again however, the petitioner’s role as a project facilitator to the sewer project is as an employee of a private company being hired by the Town as a consultant. The project facilitator is not a public position subject to the Code. Based upon the express representations of the petitioner, it is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner’s engineering firm from being hired by the Town of Johnston to serve as project facilitator to the Cherry Hill Neighborhood Sewer Extension Project, notwithstanding that he will be assigned by his employer to lead the project. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-5(e) 36-14-7(a) Related Advisory Opinions: 2003-21 2002-71 Keywords: Private employment