Advisory Opinion No. 95-107

Re: L. Robert Smith

A. QUESTION PRESENTED

Whether a member of the Board of Registration for Professional Engineers, simultaneously the president of an engineering company, may accept two projects in his private capacity associated with an engineer recently suspended by, and appealing the decision of, the same Board. Specifically, the petitioner requests an advisory opinion as to whether he may (a) complete a project initiated by the suspended engineer, and (b) accept a project from a client when the suspended engineer carried out an initial feasibility study for the project, which the petitioner reviewed.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that a member of the Board of Registration for Professional Engineers may not accept projects in his private capacity associated with a suspended engineer who appeared before the petitioner and whose matter(s) regarding the Board on which the petitioner serves are not finally resolved. The Commission's conclusion is consistent with a previous advisory opinion which allowed a member of the Board of Medical Licensure and Discipline to accept other employment involving an individual who had appeared before him only after said individual's business before the Board had been resolved. In view of the fact that the suspended engineer continues to have matters pending before the Board of Registration for Professional Engineers, the petitioner is advised against taking on projects associated with that engineer, one of which was made available as a result of his suspension, until all such matters are resolved.

This finding is not meant to suggest that the petitioner was aware that he would benefit by the engineer's suspension or that his judgement was in any way impaired when he participated in proceedings against the suspended engineer. However, in this instance the matter involving the suspended engineer is not resolved. Both at the Board level and in Superior Court, the earlier decision in which the petitioner participated is at issue. Obviously, he cannot undo that earlier participation. By defending against the suspended engineer's challenges in Superior Court and by reviewing the engineer's suspension, the Board both implicitly and explicitly reinforces the legitimacy of its suspension decision. To accept employment, and with it financial gain, while at the same time defending and/or continuing to enforce the suspension of an engineer who previously held that employment falls within the prohibitions of R.I. Gen. Laws § 36-14-5(a), (b), and (d). See also R.I. Gen. Laws § 36-14-1.

C. DISCUSSION

1. Facts

L. Robert Smith sits on the Board of Registration for Professional Engineers and, in his private capacity, is employed as the President of Waterman Engineering Co. The petitioner advises that the Board recently suspended the license of an engineer for a minimum of 6 months, subject to an extension of another six months if the engineer in question is involved in misconduct. The engineer is appealing the Board's decision to Superior Court. The petitioner advises that the Board has stayed the six month suspension until the Court makes a ruling on the appeal. In addition, the petitioner advises that were the engineer to appeal any subsequent Board decisions concerning this matter, the Court would rely on the Board's reports as to the engineer's conduct to date.

Subsequent to the suspension, Waterman Engineering Company received requests to provide services on two projects associated with the suspended engineer. The petitioner requests an advisory opinion as to whether he may accept these particular projects, as well as other projects under comparable circumstances, without violating the Code of Ethics.

The petitioner advises that he received the first request concerning a project associated with the suspended engineer from an attorney with whom he regularly works. The attorney's client was concerned about continuing with an engineer who might have to withdraw from the project due to the suspension prior to the completion of the project. The attorney suggested that the client consider the petitioner's company to complete the project. The petitioner advises that after he was contacted by the attorney, he informed him that he was a member of the Board of Registration for Professional Engineers, that he had voted in favor of the suspension, and that he would not even discuss the matter further until he had received an advisory opinion from the Ethics Commission.

The second request involves a client who finances developers based on the value of the project being undertaken. The petitioner advises that this client often determines loan amounts based on Waterman Engineering Company's evaluations of the projects. This client was recently approached to provide financing to a developer. The suspended engineer had done an initial feasibility study for the project, which the client provided to Waterman Engineering for a determination as to the true value of the project. The petitioner advises that he informed the client of the engineer's suspension and expressed his belief that he did not believe a conflict of interest would arise if he provided an assessment of the project's feasibility and a Statement of Probable Cost. However, when the client informed the petitioner that the petitioner's company would be selected to carry out the design work if the project were to be financed, Mr. Smith informed the client that he would need to request an advisory opinion concerning the propriety of his involvement in the project.

2. Analysis

A member of the Board of Registration for Professional Engineers, simultaneously employed as the president of an engineering company, requests an advisory opinion as to whether he may accept two projects associated with an engineer recently suspended by, and appealing the decision of, the same Board. Specifically, the petitioner requests an advisory opinion as to whether he may (a) complete a project initiated by the suspended engineer, and (b) accept a project from a client when the suspended engineer carried out an initial feasibility study for the project, which the petitioner reviewed. Relevant provisions of the Code of Ethics include the following:

R.I. Gen. Laws § 36-14-1 Declaration of Policy\l1. It is the policy of the state of Rhode Island that public officials and employees must adhere to the highest standards of ethical conduct, respect the public trust and the rights of all persons, be open, accountable and responsive, avoid the appearance of impropriety, and not use their position for private gain or advantage.

R.I. Gen. Laws § 36-14-5(a). No person subject to this Code of Ethics shall have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his or her duties or employment in the public interest and of his or her responsibilities as prescribed in the laws of this state, as defined in section 36-14-7.

R.I. Gen. Laws § 36-14-5(b). No person subject to this Code of Ethics shall accept other employment which will either impair his or her independence of judgment as to his or her official duties or employment or require him or her, or induce him or her, to disclose confidential information acquired by him or her in the course of and by reason of his or her official duties.

R.I. Gen. Laws § 36-14-5(c). No person subject to this Code of Ethics shall wilfully and knowingly disclose, for pecuniary gain, to any other person, confidential information acquired by him or her in the course of and by reason of his or her official duties or employment or use any such information for the purpose of pecuniary gain.

R.I. Gen. Laws § 36-14-5(d). No person subject to this Code of Ethics shall use in any way his or her public office or confidential information received through his or her holding any public office to obtain financial gain, other than that provided by law, for him or herself or any person within his or her family or business associate or any business by which the person is employed or which the person represents.

Clearly, an appearance of impropriety arises when a member of a professional board involved in the suspension of an engineer benefits from projects associated with that engineer. The appearance problems are all the more magnified in view of the fact that the suspended engineer may be reinstated before the end of his suspension period, based on good conduct and at the discretion of Board members, and that the engineer is currently appealing the Board's decision to Superior Court. In the case of the latter, the Court could rely on reports concerning the suspended engineer prepared by the Board.

More important, however, is the fact that the matter involving the suspended engineer is not resolved. Both at the Board level and in Superior Court, the earlier decision in which the petitioner participated is at issue. Obviously, he cannot undo that earlier participation. By defending against the suspended engineer's challenges in Superior Court and by reviewing the engineer's suspension, the Board both implicitly and explicitly reinforces the legitimacy of its suspension decision. To accept employment, and with it financial gain, while at the same time defending and/or continuing to enforce the suspension of an engineer who previously held that employment falls within the prohibitions of R.I. Gen. Laws § 36-14-5(a), (b), and (d). See also R.I. Gen. Laws § 36-14-1.

In the past, this Commission has ruled on an advisory opinion request reflecting facts comparable to the ones presented by the petitioner. In 1987, this Commission opined and concluded that a member of the Board of Medical Licensure and Discipline, simultaneously a practicing attorney one third of whose practice involves the preparation and trial of negligence claims, may represent clients against a physician who had recently appeared before the Board if "said physician's nexus with the Board is over." See Advisory Opinion 87-13. Thus, the Board member would be allowed to accept other employment involving the physician once said physician had completed business before the Board. The facts in that matter, however, are distinguishing from the matter before this Commission today in that (a) a Board member seeks to take on projects associated with an engineer recently suspended by his Board, (b) the suspended engineer may again appear before the Board of Registration for Professional Engineers, (c) the engineer is currently appealing the Board's decision to suspend to the Superior Court and may later appeal other decisions to the same, and (d) the Superior Court relies on reports prepared by the Board in arriving at its conclusions concerning the merits of the engineer's appeal.

Thus, it is the opinion of the Rhode Island Ethics Commission that a member of the Board of Registration for Professional Engineers may not accept projects associated with an engineer recently suspended by the Board and whose matter(s) regarding the Board are not finally resolved. The Commission's conclusion is consistent with a previous holding which allowed a board member to accept other employment involving an individual who had appeared before him only after said individual's business before the Board had been resolved. In view of the fact that the suspended engineer continues to have matters pending before the Board and, in Superior Court, challenging the Board, the petitioner is advised against taking on projects associated with that engineer, one of which was made available as a result of his suspension, until all such matters are resolved.

This finding is not meant to suggest that the petitioner was aware that he would benefit by the engineer's suspension or that his judgement was in any way impaired when he participated in proceedings against the suspended engineer. However, this Commission must concern itself with the appearance of impropriety arising when a public official benefits as a consequence of his or her official action as provided in R.I. Gen. Laws § 36-14-1.

Keywords

Business Interest

Private Employment

Disciplinary Authority