Advisory Opinion No. 2010-6 Rhode Island Ethics Commission Advisory Opinion No. 2010-6 Re: W. Douglas Gilpin, Jr., FAIA QUESTION PRESENTED The Petitioner, a member of the Town of New Shoreham Historic District Commission, a municipal appointed position, who is also an architect in private practice, requests an advisory opinion regarding whether the Code of Ethics prohibits him from contracting with the Block Island Housing Board to design plans for the construction of an “affordable” winterized home. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a member of the Town of New Shoreham Historic District Commission, a municipal appointed position, who is also an architect in private practice, is not prohibited from contracting with the Block Island Housing Board to design plans for the construction of an “affordable” winterized home, provided that any contract entered into by the Petitioner with the Town of Block Island is done through an open and public bid process in accordance with R.I. Gen. Laws § 36-14-5(h). The Petitioner has been a member of the Town of New Shoreham Historic District Commission (“Historic District Commission”) since 2006. He states that he is also an architect in private practice and specializes in historic preservation, adaptive reuse, and the design of new structures with historic character allusions; in this regard, he has authored historic structure reports, feasibility studies, and has provided condition assessment surveys for many nationally recognized historic buildings. He represents that, currently, the Town of Block Island Housing Board has issued an invitation to bid for the creation of design and construction plans for a 1,000 square foot affordable winterized home on Block Island. He affirmatively represents that he had no involvement whatsoever in the bid specification process. He states that bids are to be received by December 22, 2009, and will then be opened and read aloud. He further represents that it is his understanding that any affordable houses built as a result of the bid will be built outside of the Historic District, over which he has jurisdiction as a member of the Historic District Commission. Given this set of facts, the Petitioner asks whether the Code of Ethics prohibits him from submitting a bid and, if chosen, contracting with the Housing Board to draft the design and construction plans for the affordable units. 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), 36-14-7(a). Additionally, he may not accept outside employment that will impair his independence of judgment as to his official duties or employment. See R.I. Gen. Laws § 36-14-5(b). He also may not use his public employment or confidential information received through his public employment to obtain financial gain for himself or for a business which he represents. See R.I. Gen. Laws § 36-14-5(d). Section 5(h) of the Code provides that public officials, as well as their relatives and business associates, may not enter into contracts with any state or municipal agency “unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure or all proposals considered and contracts awarded.” R.I. Gen. Laws § 36-14-5(h). In previous advisory opinions, the Commission has consistently advised municipal employees and officials seeking to contract with or provide services to a municipality that they could only do so if the municipality used an open and public bidding process. See e.g., A.O. 2002-20 (opining that a Lincoln Parks and Recreation Commission member was not prohibited from responding to an RFP issued by the Town of Lincoln, provided that he did not participate in the bid specification process and that any contract was awarded through an open and public bid process in accordance with R.I. Gen. Laws § 36-14-5(h)); A.O. 99-83 (opining that a member of the Woonsocket Planning Board, who was also an architect in private practice, was not prohibited from accepting a contract to provide architectural services to the City of Woonsocket School department, provided that the contract was awarded pursuant to an open and public bid 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); and A.O. 98-86 (concluding that a Westerly Town Councilor should not enter into lease arrangement unless it was pursuant to an open and public process, nor could he submit a bid if he had participated in or otherwise influenced the bid development process). In this Petitioner’s set of facts, the Petitioner represents that he has had no involvement whatsoever in the bid specification process and that any contract awarded by the Block Island Housing Board will be awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. Thus, the process described by the Petitioner appears to be in accordance with R.I. Gen. Laws § 36-14-5(h). Additionally, the Petitioner states that it is his understanding that any units built as a result of the design and construction plans requested will be built outside of the Historic District over which the Historic District Commission has jurisdiction. Accordingly, there appears to be no future intersection between the Petitioner’s public duties as a member of the Historic District Commission and his private business interests, if he is in fact selected as the successful bidder to design plans for the construction of an “affordable” winterized home. However, if for any reason the Petitioner is faced with the possibility of representing himself or a client before the Historic District Commission, he is strongly encouraged to seek further guidance from this Commission regarding the applicability of R.I. Gen. Laws § 36-14-5(e) and General Commission Advisory No. 8, and to recuse in accordance with R.I. Gen. Laws § 36-14-6. See, e.g., A.O. 99-113 (opining that a member of the Block Island Historic District Commission, who was also an apprentice architect specializing in historic preservation, may represent clients before the Historic District Commission if she recuses on the matter consistent with the guidance issued in General Commission Advisory 8). Code Citations: § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-5(e) § 36-14-5(h) § 36-14-7(a) Related Advisory Opinions: A.O. 2002-20 A.O. 99-83 A.O. 97-72 A.O. 98-86 Keywords: Contracts Private Employment