Advisory Opinion No. 2008-71 Rhode Island Ethics Commission Advisory Opinion No. 2008-71 Re: John L. Tattrie QUESTION PRESENTED The Petitioner, a Warren Planning Board member, a municipal appointed position, who is also the owner and operator of Tattrie Trucking and Excavating, Inc., requests an advisory opinion as to whether his business can submit a bid to perform services for the Town of Warren, given that his wife is a member of the Warren Town Council, a municipal elected position. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a Warren Planning Board member, a municipal appointed position, who is also the owner and operator of Tattrie Trucking and Excavating, Inc., may submit a bid to perform services for the Town of Warren, notwithstanding the fact that his wife is a member of the Warren Town Council, a municipal elected position, provided that the contracts for such services are awarded through an open and public process. See R.I. Gen. Laws § 36-14-5(h). The Petitioner is a member of the Warren Planning Board (“Planning Board”) and states that his term will expire in December of 2008. He further states that his wife, Catherine Tattrie, was elected to the Warren Town Council (“Town Council”) and sworn into office as a member of the Town Council on November 17, 2008. He represents that in his private capacity, he is the owner and operator of Tattrie Trucking and Excavating, Inc. (“Tattrie, Inc.”), a small Warren-based company which functions primarily as a utility repair and excavating service to the East Bay area. He states that he holds drain-laying licenses in various municipalities in Rhode Island and in the past year has provided utility services to the Town of Warren Sewer Department. The Petitioner states that prior to June of 2008, his wife was a 49% shareholder in Tattrie, Inc., and he was the majority 51% shareholder, but in June of 2008, his wife divested herself of her shares. The Petitioner states that he is currently the sole shareholder in the corporation. The Petitioner further represents that his wife is listed as the Secretary of Tattrie, Inc. in the Articles of Incorporation and in other filings made with the Secretary of State’s Office, and the Petitioner himself is the President with his father, John James Tattrie, listed as the Vice President. The Petitioner states that in mid-November of 2008, the Town of Warren Sewer Commission (“Sewer Commission”) advertised a bid request for snow removal services and that, subsequently, the Petitioner submitted a bid for the services advertised. He further states that the bids submitted were opened on November 24, 2008, and that upon his inquiry, the Petitioner was advised by a sitting member of the Sewer Commission that he was no longer eligible to bid on services for the Town of Warren, given his wife’s status as a newly elected Town Council member. The Petitioner states that the future structure of the Sewer Commission is uncertain.[1] Based upon this set of facts, the Petitioner requests an advisory opinion as to whether Tattrie, Inc. may bid on contract services advertised for by the Town of Warren, as well as by the Bristol County Water Authority, given his spouse’s current status as a member of the Warren Town Council. The Code of Ethics provides that 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 in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if he has reason to believe or expect that he or any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a). Additionally, pursuant to R.I. Gen. Laws § 36-14-5(d), the Petitioner is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself or a family member. The Code of Ethics also prohibits the Petitioner or any person within his family from entering into a contract with any state or municipal agency unless the contract is awarded though an open and public process. See R.I. Gen. Laws § 36-14-5(h). Finally, Commission Regulation 36-14-5014 provides that no municipal elected official “shall seek or accept” employment with any municipal agency in which said official serves, “other than employment which was held at the time of the official’s election or appointment to office.” See id. Under Section 5(h) of the Code of Ethics, public officials and their family members may enter into contracts with state or municipal agencies as long as they are awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. The Commission consistently has advised municipal officials and employees seeking to contract with or provide services to a municipality that they could only do so if the municipality used an open and competitive bidding process. See A.O. 2008-14 (Chairperson of the Coventry Planning Commission may respond to an RFQ to perform municipal engineering services for the Town, provided that he did not participate in the bid specification process and that any contract awarded is pursuant to an open and public bidding process); 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 e.g., A.O. 98-48; A.O. 98-79. Here, the proposed contract for services does not involve or impact upon the Petitioner’s own public body and he has no ability to extend any improper influence or control over the selection process. Furthermore, as a member of the Planning Board, the Petitioner has no involvement with the development of bid specifications nor does the Planning Board participate in the review or selection of companies to perform these services. Additionally, according to the Petitioner, there is a sufficient open bid process by which companies are selected to provide plow services, including prior public notice and subsequent disclosure of all proposals considered and contracts awarded. Thus, the Petitioner is not prohibited by R.I. Gen. Laws § 36-14-5(h) from entering into a contract to provide these services to the Town of Warren. Separate and apart from the requirements of section 5(h) as to an open and public process, is the additional prohibition outlined in Commission Regulation 36-14-5014 which states in pertinent part: No municipal elected official or municipal school committee member, whether elected or appointed, while holding office and for a period of one (1) year after leaving municipal office, shall seek or accept employment with any municipal agency in the municipality in which the official serves, other than employment which was held at the time of the official’s election or appointment to office or at the time of enactment of this regulation, except as provided herein. Id. For purposes of Regulation 5014, “employment” includes “service as an independent contractor.” Id. In this instance, the Petitioner himself is not prohibited by Regulation 5014 from individually seeking or accepting employment with the Town of Warren because, as a Planning Board Member, he is an appointed, not an elected, official. The central question raised by this Petitioner’s set of facts, however, is whether Commission Regulation 5014 prevents Tattrie, Inc. from seeking or accepting employment with the Town of Warren, given that Catherine Tattrie, who is a municipal elected official subject to the prohibitions found in Regulation 5014, is the Secretary of Tattrie, Inc., and this Petitioner’s spouse. It is the opinion of the Ethics Commission that, while it is clear that Catherine Tattrie would be prohibited from participating in matters coming before her as a member of the Warren Town Council concerning Tattrie, Inc., pursuant to R.I. Gen. Laws §§ 36-14-5(a), 5(d), 5(f) and 7(a), given her spouse’s ownership of that entity and her own business association with it by way of her status as Secretary, neither those provisions nor Commission Regulation 5014 prohibit Tattrie, Inc., from seeking or accepting employment with the Town of Warren or the Bristol County Water Authority by way of bidding for contract services, provided that those bids conform to the open and public process mandate of R.I. Gen. Laws § 36-14-5(h). Notwithstanding all of the above, the Commission notes that, had Catherine Tattrie remained a shareholder of Tattrie, Inc., Commission Regulation 5014 may have been implicated in regard to that entity’s ability to bid on the provision of services to the Town of Warren. Finally, the Petitioner is advised that this opinion solely addresses the application of the Code of Ethics. We note that this opinion does not address whether any municipal charter provision or ordinance prohibits such activity. Such matters are outside the jurisdiction of the Ethics Commission and, as a result, cannot be addressed in this advisory opinion. Code Citations : § 36-14-5(a) § 36-14-5(d) § 36-14-5(f) § 36-14-5(h) § 36-14-7(a) Commission Regulation 5014 Related Advisory Opinions : 2008-14 97-72 Keywords : Business Association Contracts Family: Business Interest Private Employment [1] An article dated November 12, 2008, in East Bay RI.com states that “[v]oters approved of the charter resolution to disband the Warren Sewer Commission when they cast their ballots on Nov. 4, but the changes will not be enacted until the New Year at the earliest. * * * In order to abolish the commission, the town’s charter resolution must be repealed by the state’s General Assembly, which will be in session in the beginning of the year. It is up to the new town council to officially send that resolution to the state. If the repeal is passed by the General Assembly, the sewer commission’s duties will fall under the new town manager, and then possibly a new sewer superintendent. The resolution makes the sewer department fall under the umbrella of the town council, just like other town departments.” (http://eastbay.new.adqic.com/detail/79849.html)