Advisory Opinion No. 97-66

Re: Scott McLeish

QUESTION PRESENTED

The Petitioner, Middletown Town Councilor and Beach Commission member, a municipal elected position, intends to submit a bid for concession rights at Middletown's 2nd Beach, and requests an advisory opinion as to whether in order to do so he must resign from the Beach Commission and/or recuse from participating or voting as a Beach Commission member on matters relating to beach concessions.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Middletown Town Councilor and Beach Commission member, a municipal elected position, need not resign from the Beach Commission if he bids on concession rights for 2nd Beach. Under the Code of Ethics, the Petitioner 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 and responsibilities in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). Also pursuant to R.I. Gen. Laws § 36-14-5(d), the Petitioner may not use his public position or confidential information received through his position as Town Councilor or Beach Commission member to obtain financial gain, i.e., concession rights for himself or a business associate.

The Code of Ethics also provides, however, that a public official or employee, or any person within his family or a business associate may enter into a contract with a municipality provided the contract has been awarded through an open and public process. See R.I. Gen. Laws § 36-14-5(h). The Commission previously has ruled that officials who participated in the bid development process would place themselves, their family members or their business associates in a privileged position with respect to other bidders and consequently diminish if not eliminate the "open and public process" required under the Code. Based on the Code of Ethics, the Petitioner can bid on the concession rights so long as he has not participated in the bid development process. If the Petitioner can and does bid on the concession rights, he must recuse from participation as a Beach Commission member and as Town Councilor, regarding all matters concerning the concession rights including but not limited to bid development, review of proposals, and awarding of the contract. If the Petitioner is not the successful bidder, he may participate in matters concerning the concession contract after it is awarded. However, if the Petitioner is successful, he must recuse prospectively on all matters regarding 2nd Beach concessions.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-5(h)

36-14-7(a)

Related Advisory Opinions:

95-24

95-60

95-90

95-116

97-15

97-24

Keywords:

contracts