Advisory Opinion No. 2010-10 Rhode Island Ethics Commission Advisory Opinion No. 2010-10 Re: Edward Connors QUESTION PRESENTED The Petitioner, a member of the City of East Providence Historic District Commission, a municipal appointed official, requests an advisory opinion regarding whether he is permitted to bid on and accept a contract to provide consulting services to the City relative to obtaining a National Register listing for the historic Phillipsdale area of the City. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the City of East Providence Historic District Commission, a municipal appointed official, may not bid on or accept a contract to provide consulting services to the City relative to obtaining a National Register listing for the historic Phillipsdale area of the City. Under the facts as represented by the Petitioner, such consulting work would violate the Code of Ethics' revolving door provisions. The Petitioner is a member of the East Providence Historic District Commission ("HDC"), a newly created municipal agency with members appointed by the City Council which convened its first meeting in October 2009. The Petitioner states that the City of East Providence has received a $17,000 grant to fund a historical preservation survey of the Phillipsdale area of the City, with the goal of utilizing the survey to support a nomination of the Phillipsdale area to the National Register as a historic district. Such nominations typically include surveys of all buildings and structures within the area, recommendations as to boundaries, consultation with the State Historic Preservation Office ("SHPO"), and the preparation of a National Register of Historic Places nomination form. The reason for the Petitioner's instant request for advice is that he wishes to submit a bid to perform this survey work for the City. In his private capacity the Petitioner is a historical preservation consultant operating as Edward Connors and Associates. The Petitioner represents that he is experienced in providing nominations to the National Register for both individual properties and larger districts. In particular, he states that in 2005 he prepared the National Register nomination form for a factory complex in Phillipsdale, and is familiar with the area and its industrial history. According to the Petitioner, a Request for Proposals (RFP) to carry out the survey was created with advice and input from the HDC, but without the Petitioner's participation. A copy of the minutes of the HDC's November 18, 2009 meeting, provided by the Petitioner, indicates that following the Petitioner's recusal the HDC reviewed the proposed RFP and recommended changes to the scope of the contract, an eight month period to complete the survey, and indicated that the consultant should provide two to three progress reports to the HDC during the survey period. Although the HDC will receive periodic updates from the chosen consultant, the Petitioner asserts that a Planning Department committee, not the HDC, will oversee all aspects of the survey, including holding a pre-bid meeting, interviewing applicants, and making the final selection of consultant. This committee will consist of members of the Planning Department, the City's Purchasing Agent, and one member of the HDC (not the Petitioner). Once awarded, the parties to the contract will be the City of East Providence, the State Historic Preservation Office, and the selected consultant. The Petitioner notes that although the HDC will be kept informed of the status of the project and may serve as a resource for the consultant (for instance by sharing old photographs), the HDC will not approve change orders, modify the scope of work, or handle any of the other tasks that will fall within the jurisdiction of the Planning Department's committee. The Petitioner states that he will recuse himself from participating in any HDC discussions relating to the project. Under the Code of Ethics, an appointed official such as the Respondent is prohibited from accepting appointment from his own board to any position which carries with it any financial benefit or remuneration, until the expiration of one (1) year after termination of his membership on the board, unless the denial of such employment would create a substantial hardship for the board or municipality. See Commission Regulation 36-14-5006. Furthermore, during that same period of service and for one year thereafter, regardless of whether or not the Respondent was hired by his own board, the Respondent is not permitted to appear before his own board to represent himself or any other person. See R.I. Gen. Laws § 36-14-5(e). We have previously stated that the general purpose of Regulation 5006 and the Code's revolving door provisions is to prevent government employees and officials from unfairly profiting from or trading upon the contacts, associations and special knowledge that they acquired while performing their public duties as members of state and municipal boards. See A.O. 2004-36. There, we opined that a state employee sitting on the Rhode Island Water Resources Board as the designee of the Director of Administration could not, while serving and for one year thereafter, become employed by the Board as its General Manager. Id. The Ethics Commission applied Regulation 5006 and section 5(e) to an analogous set of facts in Advisory Opinion 2000-4. There, we opined that a member of the State Council of the Arts could not accept appointment to the position of State Poet. Although the appointment was made by the Governor, and not the Council, the Council provided input into the nomination process. Furthermore, the State Poet's appearance at Council meetings was foreseeable given that the position was managed and administered by and through the Council. In the instant matter, although the Petitioner represents that the HDC is not responsible for selecting the consultant, it is clear that the Petitioner's board had a substantial role in drafting the RFP and setting its parameters. Furthermore, the HDC will remain involved in the project's oversight through multiple progress reports given by the chosen consultant at open meetings, and through its participation in the Planning Department committee. Additionally, the Petitioner, if selected, will be required to appear before the HDC two to three times to consult with its members and to account for his progress. Even if the Petitioner recuses from such an important oversight function, these appearances before his own board are prohibited by section 5(e). Based on all of the above, we believe that the Petitioner's acceptance of the subject contract would violate the Code of Ethics, would be contrary to the aim of the Code's revolving door provisions, and would create an appearance of impropriety. Code Citations: 36-14-5(e) 36-14-5006 Related Advisory Opinions: 2004-36 2000-4 Keywords: Appointing authority Revolving door