Advisory Opinion No. 2008-12 Rhode Island Ethics Commission Advisory Opinion No. 2008-12 Re: Michael Mello QUESTION PRESENTED: The petitioner, the Building Official for the Town of Little Compton (“Building Official”), a municipal appointed position, requests an advisory opinion as to whether he may simultaneously work as a contractor, specifically a finish carpenter, in the Town of Little Compton. RESPONSE: It is the opinion of the Ethics Commission that the petitioner, the Building Official for the Town of Little Compton (“Building Official”), a municipal appointed position, may simultaneously work as a contractor, specifically a finish carpenter, in the Town of Little Compton, provided that he does not inspect his own work. The petitioner informs that he is employed as the Building Official for the Town of Little Compton and in that capacity his responsibilities include inspecting building projects in the Town of Little Compton. Privately, the petitioner informs that he is a licensed general contractor and is also self-employed as a contractor, specifically, as a finish carpenter. He states that finish carpentry primarily consists of installing hardwood floors, moldings, and other interior work. The petitioner represents that his contracting work is limited to areas that do not require building permits, specifically the aforementioned types of work; however, the petitioner states that because of his position as the Building Official, he does not undertake substantial construction projects, for example as a general contractor, within the Town of Little Compton. Further, the petitioner represents that he understands that he may not perform work for general contractors who appear before him to obtain building permits or for other matters; rather, he inquires whether, if contacted by a homeowner directly for projects that do not require a building permit, he may accept such employment. The petitioner states that he understands that any transactions with potential clients may not be done during his regular working hours as Building Official, and that he may not use public resources, nor use his position with the City to solicit customers. The petitioner states that if any matter involving a homeowner with whom he has an ongoing business association comes before him as the Building Official, he would obtain the services of the Building Official of another municipality, specifically, the Tiverton or Portsmouth Building Officials, and would recuse himself from participation. The petitioner affirmatively represents that the Town of Little Compton has an ongoing arrangement with these two municipalities that permits either of those officials to inspect projects that would otherwise involve a conflict of interest for the Little Compton Building Official. As such, the petitioner seeks guidance as to whether he may continue to work as a finish carpenter-contractor in the Town of Little Compton, while simultaneously being employed as the Building Official, given the aforementioned representations and provided that he does not inspect his own work. 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 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). Additionally, no business associate of any person subject to this Code of Ethics shall represent him or herself before the municipal agency of which the person is a member unless the agency is advised 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 opined that a public official was not prohibited from performing services in his own town provided that the public official does not inspect his own work. See A.O. 2003-55 (opining that the Alternate Building Official for the Town of Coventry may do work in Coventry that doesn’t require a permit or inspection, such as cabinetry work, painting, and tile work, provided that he would not be inspecting projects for which he provided services); A.O. 99-39 (opining that the Alternate Building Official for the Town of East Greenwich may provide architectural design services for private clients within East Greenwich, provided that he recuse from participation in any review or inspection of projects in which he is involved and that his private employment does not require him to appear before the Building Official); A.O. 98-49 (opining that an Engineer hired by the Town of Johnston may appear before the Town of Johnston Planning Board as the engineer of record on a project to be reviewed by the Board, provided that another engineer retained by the Town reviews and completes all necessary inspections for the project). C.f. A.O. 95-32 (advising the Bristol Building Official that the Code of Ethics would not permit him to inspect or review plans of a building in which his son performed services of an architect and that he should take steps to have a building official of another town inspect any building in which his son provided architectural services). Here, provided the petitioner would not be inspecting projects for which he provided contracting services, the petitioner would not be participating in matters where he had an interest in substantial conflict. Additionally, the petitioner is cautioned that transactions with potential or actual clients may not be done during his regular working hours as Building Official, and he may not use public resources, nor use his position with the City, to solicit customers. As such, the petitioner may work as a finish carpenter in the Town of Little Compton while simultaneously employed as the Building Official. In this instance, the petitioner is also cautioned that he may not participate in official actions that involve a homeowner or other contractor with whom he has an ongoing business association, but that the town may utilize the services of a Building Official of another municipality to do so, as described herein. See R.I. Gen. Laws § 36-14-5(f). Code Citations: 36-14-2(3) 36-14-5(a) 36-14-5(f) 36-14-7(a) Related Advisory Opinions: 2003-55 99-39 98-49 95-32 Keywords: Business Associate Financial Interest Recusal