Advisory Opinion No. 95-116

Re: James J. Jones

A. QUESTION PRESENTED

Whether James Jones, the Senior Building Construction Inspector for the University of Rhode Island ("URI"), may prepare contract proposals where there is a possibility that a low bidder may subcontract with or employ the petitioner's brother, a union pipefitter, to perform work under this contract?
Whether, if the petitioner's brother is hired to perform work under the awarded contract, the petitioner may oversee his brother's work and sign for his payment?

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the petitioner may participate in the preparation of contract proposals where there is a possibility that his brother, a licensed pipefitter, may he hired as a subcontractor/employee to perform work under the contract. This opinion is based on the petitioner's representations that a) the contract is awarded to the lowest bidder after an open and competitive bidding process; and b) he has no control/influence over who the selected contractor hires as employees/subcontractors.
It is the opinion of the Rhode Island Ethics Commission that, should his brother be hired as a subcontractor, a) the petitioner should recuse himself from any matter concerning the contract that would require him to exercise discretion as compared to ministerial acts (which are permitted); and b) the Housing Department should assign another individual to oversee and issue payment for the work performed under the contract.

C. DISCUSSION

1. Facts

The petitioner, as the Senior Building Construction Inspector for the Housing Department at URI, prepares contract proposals for goods and services needed by the Housing Department.(1) Once the contract is awarded after an open and competitive bidding process, the petitioner oversees the daily work performed by the contractor and approves payment when the terms of the contract are satisfied.

The petitioner advises that in July, 1995, the State's Purchasing Department, after an open and competitive bidding process, awarded a contract to the low bidder to perform work on the steam heat and hot water systems in buildings under the Housing Department's control.(2) After receiving the contract, the low bidder, a "union shop," hired one of the petitioner's brothers, a union pipefitter, to perform work under this contract.(3)

2. Analysis

Under the Code of Ethics, the petitioner, as Senior Building Construction Inspector, 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 in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a).(4) Pursuant to R.I. Gen. Laws § 36-14-5(d), the petitioner is also prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself or a family member. Additionally, the Code of Ethics prohibits the petitioner or any person within his family from entering into a contract with the state unless the contract had been awarded through an open and public process. See R.I. Gen. Laws § 36-14-5(h).

As to the first issue raised in the petitioner's request, we conclude that the petitioner will not violate the Code of Ethics if he continues to prepare contract proposals for his department where there is a possibility that one of his brothers may be hired as a subcontractor under the contract. This conclusion is based on the petitioner's representations that a) the contracts are awarded after an open and competitive bidding process; and b) he has no control over who is awarded the contract or who the low bidder ultimately hires as subcontractors or employees. Based on these representation, it is our opinion that, by preparing contract proposals, the petitioner has neither an interest in substantial conflict with his public duties nor is he acting to impermissibly benefit a family member. See R.I. Gen. Laws §§ 36-14-5(a) and 5(d).

As to the second issue raised in this request, we conclude that the petitioner will violate the Code of Ethics if he oversees the work performed under the contract or issues payment for the work completed by his brother since he would then be acting where he has an interest in substantial conflict with the discharge of his duties of employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). We advise the petitioner that if his brother is hired to do work for the Housing Department, he should a) notify his superiors; b) recuse himself from any other matter involving the contract that would require him to exercise discretion as compared to ministerial acts (which are permitted); and c) have his inspection responsibilities assigned to another individual within his office. This conclusion is consistent with past advisory opinions which have prohibited public officials from reviewing or inspecting work performed by a family member. See A.O. 94-22 (opining that a member of the Board of Commissioners of the Rhode Island Convention Center Authority must recuse himself from any issue related to matters affecting employees of the contractor who provided parking garages to the Convention Center, where his son and son-in-law were employed by the contractor); A.O. 92-3 (concluding that if the Town of Richmond hired the father of the petitioner (Richmond's Electrical Inspector), a) the petitioner must notify the Town Council of the nature of his interest and recuse himself from any matter concerning his father; and b) the Town of Richmond must engage an outside inspector to review and/or inspect the services performed by the petitioner's father).

Footnotes

(1) The petitioner advises that the bids are generally between $50,000 and $100,000.

(2) The petitioner advises that he does not have any type of relationship with the low bidder.

(3) During a telephone conversation, a member of the staff informed the petitioner that he could not seek an advisory opinion for past conduct. The petitioner advises, however, that although the contract awarded in July will expire shortly, he anticipates that, since his department will place another contract up for bid shortly, he may be faced with a similar situation in the near future since more than one of his brothers potentially could be hired as subcontractors. During a Commission meeting on November 16, 1995, the petitioner indicated that his brothers have worked as subcontractors for URI very infrequently, perhaps once every five years.

(4) Substantial conflict is defined as a "direct monetary gain" or a "direct monetary loss" that accrues, by virtue of the public official's activity, to that individual, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws s. 36-14-7(a).

Keywords

Nepotism

Family: Private Employment

Family: Supervision

Contracts