Advisory Opinion No. 95-68

Re: Edward F. Sanderson

A. QUESTION PRESENTED

Whether two members of a municipal agency, the Newport Common Burial Ground Advisory Commission, may respond to a request for proposals circulated by said Commission and funded and administered by the Historical Preservation and Heritage Commission under the following circumstances: (a) the request for proposals was circulated but received no response from any other individual or firm, (b) the public members responding to the request for proposals will take a leave of absence from the Commission during the course of the project, and (c) and said public members will not influence or participate in the Newport Common Burial Ground Advisory Commission's evaluations of their proposal or in the subsequent supervision of the project.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that two members of the Newport Common Burial Ground Advisory Commission may respond to a request for proposals and accept a contract from said Commission to carry out a federally funded project administered by the Historical Preservation and Heritage Commission. This opinion is based on the following representations: (a) the request for proposals was circulated but received no response from any individual or firm, (b) the public members responding to the request for proposals will take a leave of absence from the Newport Common Burial Ground Advisory Commission during the course of the project, and (c) said public members will not influence or participate in said Commission's evaluation of their proposal or in the subsequent supervision of the project. Thus, this Commission finds hardship warranting an exception to Regulation 36-14-5006 ("Employment from own Board").

C. DISCUSSION

1. Facts

Edward F. Sanderson, the Executive Director and Deputy State Historic Preservation Officer of the Historical Preservation & Heritage Commission, advises that said Commission has awarded and will administer $5,000 in federal funds to the Newport Common Burial Ground Advisory Commission (NCBGAC), a municipal agency, in order to survey historical gravestones and markers in the Common Burial Ground towards developing recommendations for preservation and conservation treatments for those stones deemed historically significant. The petitioner advises that a request for proposals (RFPs) was issued for professional consultants to carry out the project. Due to the lack of responses to the RFP, the petitioner advises that he is aware of two members of the NCBGAC who would be interested in responding to the request for proposals. Both members are qualified to carry out the survey and would be willing to take a leave-of-absence from said Commission in order to carry out the project. This leave of absence will preclude the involvement of the members in the supervision of a project for which they are responsible. Petitioner also advises that his agency, the Historical Preservation & Heritage Commission, will monitor the project and approve all expenditures.

2. Analysis

At issue in this advisory opinion request is whether members of a municipal agency may respond to a request for proposals circulated by their own agency. The Code of Ethics provides that a public official may not use his or her public office or confidential information received through his or her holding such office in any way to obtain financial gain, other than that provided by law pursuant to R.I. Gen. Laws § 36-14-5(d). The Code also prohibits a public official from representing him or herself before the agency of which he or she is a member and for one year after officially leaving a public position pursuant to R.I. Gen. Laws § 36-14-5(e)(1) and (e)(4). In addition, R.I. Gen. Laws § 36-14-5(h) prohibits a public official from entering any contract with a government agency unless the contract has been awarded through an open and public process. Regulation 36-14-5006 further provides that no public official shall accept any appointment by the body by which he or she is or was a member, to any position which carries with it any financial benefit, until one year after officially terminating membership with said agency unless the Ethics Commission approves this appointment based on the finding that denying the position to the public member would result in a hardship for the government entity.

In past holdings, the Commission has permitted a member of a governmental entity to seek a position or a contract if the entity in question demonstrates hardship as in the case when a request for proposals or a position vacancy does not attract any applicants or when only a few uniquely qualified individuals are available to fill a particular position or apply for a particular contract. In 1988, for example, the Commission concluded that full-time physicians employed by the Rhode Island Department of Mental Health, Retardation, and Hospitals may enter contracts with said agency to provide off hour services to patients at state facilities if these opportunities are publicly advertised and if subsequent public disclosure is made of all proposals considered and contracts awarded pursuant to R.I. Gen. Laws § 36-14-5(h). In that advisory opinion request, the petitioner made representations indicating that the state facility preferred to contract with its own physicians for the sake of efficiency and the comfort of the patients. See Advisory Opinion 88-46. In another decision, the Commission ruled that a member of the Portsmouth School Committee may seek and accept a position advertised by the Portsmouth School Department as an extra curricular strength and conditioning coach at the Portsmouth High School when, after the circulation of the position announcement both within and outside of the school system, no applications were received for the position. Since said position involved nominal compensation and no benefits, the Commission ruled that the petitioner need not resign his position on the School Committee if appointed to the coaching position. See Advisory Opinion 90-87.

The Commission also allowed a member of the Newport Beautification and Conservation Commission and a technical contractor in his private employment, to seek and accept a contract with the City of Newport to restore and maintain its gas lights due to that individual's unique qualifications. The Ethics Commission concluded that "to deny...[said public official's] services to the project...and the Beautification and Conservation Commission would represent a hardship to the project and the citizens of Newport." See Advisory Opinion 94-39. In an advisory opinion request involving a member of the Cumberland Historic District Commission, however, the Ethics Commission concluded that said member may not accept a contract from her own agency to carry out a signage program. During discussions, the Commissioners were not persuaded that hardship existed in that particular agency to warrant offering the Commission member a contract. See Advisory Opinion 90-68.

It is the opinion of the Rhode Island Ethics Commission that members of the Newport Common Burial Ground Advisory Commission may respond to a request for proposal and accept a contract to provide consultant services to said municipal entity given the following representations and recommendations: (a) that the request for proposals was circulated to the public, but that the Commission received no response from any individual or firm, (b) that the public members will take a leave of absence from the Commission during the course of the project, and (c) that the public members who seek or obtain the contract will not influence or participate in said Commission's evaluation of their proposal or in the subsequent supervision of the project. We therefore find hardship warranting an exception to Regulation 36-14-5006 ("Employment from own Board").

Keywords

Contracts

Grants