Advisory Opinion No. 2008-72 Rhode Island Ethics Commission Advisory Opinion No. 2008-72 Re: Brian G. Coogan QUESTION PRESENTED The Petitioner, a member of the East Providence City Council, a municipal elected position, requests an advisory opinion as to whether his company, A Towing Inc., may continue to serve on the City of East Providence Tow list, notwithstanding his position as a municipal elected official. RESPONSE It is the opinion of the Ethics Commission that the Petitioner’s company, A Towing Inc., may continue to serve on the City of East Providence Tow list, notwithstanding that he is a member of the East Providence City Council, given that this employment was held at the time of his election to office, pursuant to Commission Regulation 36-14-5014. The Petitioner is a newly elected member of the East Providence City Council (“City Council”) who was sworn in to office on December 1, 2008. He states that in his private capacity, he is the sole shareholder, officer and operator of A Towing, Inc., an East Providence based company. He further states that for approximately the past five years, his company has been on the City of East Providence tow list (“tow list”). The Petitioner represents that there are currently six companies on the tow list and that the Police Department contacts each company on a rotating basis as tows are needed by the City; as a result, requests for towing services are distributed equally amongst the six companies on the list. Additionally, the Petitioner states that payment for towing service is not made by the City, but rather, by the individual owner whose vehicle is being towed. He represents that, in order to be eligible to serve on the tow list, members of the public must satisfy the criteria enumerated in East Providence City Ordinance § 8-523 “Procedure for licensing.” This provision mandates that interested persons complete an application form containing the information as required by the section and that the application must be renewed annually or will terminate on November 30th of the year in which the license was granted. See id. The Petitioner explains that companies are not “re-appointed” each year to the list, but rather automatically remain on the list if the required form and $25.00 licensing fee are submitted. The Petitioner states that he has completed this process for the 2009 renewal. The Petitioner represents that any member of the public who satisfies the criteria enumerated in § 8-523, and other pertinent City regulations, ordinarily receives City Council approval and is placed on the list. He further represents that the Chief of Police of East Providence (“Chief”) has indicated to the City of East Providence City Solicitor, James Briden, that any new applicants would not likely be added to the list since the list is at maximum capacity with the current six companies. Finally, the Petitioner indicates that, if the Chief is dissatisfied with the service of any particular company, he could recommend to the City Council that the company be removed from the list, but his recollection is that this has never happened during the present Chief’s tenure. Given this set of facts, the Petitioner requests an advisory opinion as to whether his company, A Towing, Inc., may continue to serve on the City of East Providence tow list, notwithstanding the fact that he is now a member of the East Providence City 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.” Id. In his written request, the Petitioner provides a lengthy analysis regarding the application of R.I. Gen. Laws § 36-14-5(h) to the facts of his circumstance. 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). While it appears that the procedure for licensing mandated by East Providence City Ordinance § 8-523, would likely meet the open and public requirements of § 36-14-5(h), in the facts as presented by this Petitioner, the process for his application and appointment onto the tow list was completed approximately five years ago, prior to his election to his current municipal office. As such, this Commission will not now determine whether that long ago completed process, which is no longer prospective in nature, met the requirements of 5(h). However, separate and apart from the requirements of section 5(h), 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. (Emphasis added.) For purposes of Commission Regulation 5014, “employment” includes “service as an independent contractor,” and thus, would include A Towing, Inc.’s towing services to the City of East Providence. Id. In this instance, the Petitioner has held this “employment” for approximately five years, prior to his election to municipal office, and the prohibition found in Regulation 5014 specifically excludes “employment which was held at the time of the official’s election or appointment to office.” We note that the requirement that the Petitioner submit an annual application for renewal of licensure and the corresponding $25 fee is not the equivalent of “seeking or accepting” new employment under Regulation 5014, but rather, is analogous to numerous other service licensure or professional certification procedures found across a broad array of industries and professions that require an annual payment for renewal. Accordingly, based upon the clear language of 5014, it is the opinion of the Ethics Commission that the Petitioner may continue his current employment, which he has held for a period of approximately five years prior to his election to office, as a towing service provider for the City of East Providence. See A.O. 2007-3 (opining that a Charlestown Town Council member may retain his part-time employment as a custodian at the Charlestown Senior Center, a municipal employee position, which he held prior to his election to the Town Council). Conversely, Commission Regulation 5014 would prohibit the Petitioner from seeking or accepting any other employment with the City of East Providence during his tenure on the City Council and for a period of one (1) year thereafter. Further, the Commission cautions the Petitioner that the Code of Ethics prohibits his participation in City Council matters involving his company, A. Towing, Inc., any of the other companies on the list, and any issues or matters related to towing within the City. See R.I. Gen. Laws §§ 36-14-5(a), 5(d), and 7(a). As such, the Petitioner must either recuse from participation and vote on such matters or seek further guidance from the Commission. Notice of recusal should be filed with the City Council and the Commission in accordance with R.I. Gen. Laws § 36-14-6. Finally, the Petitioner is advised that this opinion solely addresses whether the Code of Ethics prohibits his continued municipal employ. It does not, and cannot, address whether any other statute, charter, ordinance, ruling or policy prohibit such conduct. The Ethics Commission does not exercise jurisdiction over those other provisions of law and, therefore, is not empowered to issue advisory opinions addressing or interpreting their effect. Code Citations : § 36-14-5(a) § 36-14-5(d) § 36-14-5(h) § 36-14-7(a) Commission Regulation 5014 Other Related Citations : East Providence City Ordinance § 8-523 Related Advisory Opinions : A.O. 2008-14 A.O. 2007-3 Keywords : Contracts Private Employment