Advisory Opinion No. 95-90

Re: Jan Dearborn Wilkins

A. QUESTION PRESENTED

Whether, under the Code of Ethics, the Warwick Sewer Authority may award a contract for work to be completed for the Sewer Authority and the Warwick Community Development Office to D'Ambra Construction, Inc., a company which employs Petitioner Jean Dearborn Wilkins' husband, where the petitioner is employed as the Community Development Coordinator and the Community Development Office is responsible for reimbursing the Sewer Authority for part of the contract.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Warwick Sewer Authority may award the contract at issue to D'Ambra Construction Company, Inc., a company which the petitioner's husband serves as vice-president, provided that the petitioner was neither involved in the bidding process nor responsible for the administration of this project.

C. DISCUSSION

1. Facts

The petitioner, as Community Development Coordinator for the City of Warwick, is responsible for administering the Community Development Block Grant Program (CDBG), a program funded by the Department of Housing and Urban Development (HUD), and other housing initiatives for the City of Warwick. As part of CDBG, the City receives an annual grant to be used primarily for neighborhood revitalization, which often includes infrastructure improvements such as "streetscape" improvements (installing sidewalks, lighting and trees).

The Community Development Office recently completed a streetscape design for the Village of East Natick which this Office plans to complete in conjunction with a sewer project administered by the Warwick Sewer Authority. The Sewer Authority recently requested public bids for both projects to avoid unnecessary costs and disruptions. The petitioner advises that she did not participate in preparing the bid specifications. D'Ambra Construction, Inc. (D'Ambra Construction), a company for which the petitioner's husband, Richard L. Wilkins, serves as the vice-president in charge of construction, submitted the lowest bid.(1)

The petitioner advises that her husband will be directly responsible for the East Natick Sewer Project. The petitioner also advises that, although the Sewer Authority will execute and administer the construction contract, the Community Development office will be "backcharged" for its portion of the contract. The petitioner indicated that, although she is normally responsible for executing payment vouchers, in order to eliminate her involvement, a Project Manager for the Community Development Office (Kevin Sullivan) will oversee the East Natick project and can assume the payment responsibilities.

2. Analysis

Essentially at issue in this advisory request is whether the Code of Ethics permits the Warwick Sewer Authority to award a contract involving sewer work and streetscape improvements (that portion of the Contract to be financed by the petitioner's office) to the construction company which employs the petitioner's husband. Under the Code of Ethics, the petitioner is prohibited from using her public employment, or confidential information received through her position, to obtain financial gain for herself, any person within her family, or any business associate. See R.I. Gen. Laws § 36-14-5(d). The petitioner, as a public employee, is also prohibited from participating in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). Furthermore, pursuant to R.I. Gen. Laws § 36-14-5(h), the petitioner and any business entity in which either she or a person within her family has a ten percent or greater equity interest or five thousand dollars or greater cash value interest, are prohibited from entering into a contract with a municipal agency unless the contract had been awarded through an open and competitive bidding process.

After reviewing the petitioner's past and future involvement with this contract, the Commission concludes that the Code of Ethics will permit the Warwick Sewer Authority to award the contract at issue to the petitioner's husband's employer, D'Ambra Construction. This conclusion is based on the petitioner's representations that (1) the Sewer Authority followed an open, public and competitive bidding process; (2) she had not been involved in any way in the preparation of bid specifications; and (3) another Project Manager for the Community Development Office has overseen this project, will continue to oversee this program, and will, if directed, assume all payment and reimbursement responsibilities for this project. The conclusion reached in this advisory opinion is also based on past advisory opinions which have permitted a municipal or state agency to award a contract which involved a person subject to the Code or a family member where that individual had not been involved in the bidding procedures and the agency had used an open and competitive bidding process. See e.g., A.O. 92-05, A.O. 90-62, A.O. 89-75, A.O. 89-40, and A.O. 88-42. Notwithstanding this conclusion, to avoid an appearance of impropriety, we suggest that Mr. Kevin Sullivan, the Project Manager responsible for the East Natick Project, should assume all billing/payment responsibilities for this project.

Footnotes

(1) Petitioner advises that this contract will be awarded shortly with construction to commence immediately thereafter.

Keywords

Nepotism

Family: Private Employment

Contracts