Advisory Opinion No. 97-147

Re: Allan Booth, Jr.

A. QUESTION PRESENTED

The Petitioner, Newport Tax Assessor, a municipal employee position, requests an advisory opinion as to whether the City of Newport may accept bids for property inspection services from vendors that have testified, and may testify in the future, in proceedings before the Board of Tax Appeals and/or the Superior Court on behalf of litigants whose interests were contrary to those of the City of Newport.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the City of Newport may accept bids for property inspection services from vendors that have testified, and may testify in the future, in proceedings before the Board of Tax Appeals and/or the Superior Court on behalf of litigants whose interests were contrary to those of the City of Newport. Under the Code of Ethics, independent contractors of a state or municipal government are not "employees.” Nor are they appointed officials. Consequently, independent contractors do not fall under the jurisdiction of the Ethics Commission and are not covered by the conflict of interest provisions contained in the Code of Ethics. See R. I. Gen. Laws § 36-14-2. Therefore, nothing in the Code of Ethics prohibits the City from accepting bids from vendors that have in the past or will in the future appear before municipal boards or the Superior Court on behalf of litigants whose interests were contrary to those of the City of Newport.

C. DISCUSSION

1. Facts

The City of Newport solicited bids for property inspection and received seven responses. The Petitioner represents that two vendors that responded have experience in Superior Court testifying on behalf of litigants whose interests are adverse to those of the City, while three vendors have similar experience before the Board of Tax Appeals. A successful bidder conceivably could be faced with the prospect of inspecting the property of a client whose interests it had represented in previous administrative action or litigation.

2. Analysis

The Code of Ethics provides that state and municipal elected officials, state and municipal appointed officials, and employees of state and local government, of boards, Commission, and agencies are covered by the Code of Ethics. R. I. Gen. Laws §36-14-4. An employee is defined by the Code as, any full-time or part-time employees in the classified, non-classified and unclassified service of the state or of any city or town within the state, any individuals serving in any appointed state or municipal position, and any employees of any public or quasi-public state or municipal board, Commission or corporation. R. I. Gen. Laws §36-14-2(3).

Additionally, the Superior Court has considered how the phrase "other employment" in R. I. Gen. Laws §36-14-5(o) should be applied. See Suzanne Worrell Gemma, et al. v. Rhode Island Ethics Commission, No. 94-3404 (R.I. Sup. Ct., filed Sept. 17, 1994). That matter concerned a former Deputy Legal Counsel to the Governor who, upon leaving state employment, continued to work as an independent attorney in private practice on cases that she previously had handled as part of her public employment responsibilities. The Commission issued an advisory opinion stating that the Code of Ethics prohibited Ms. Gemma from working on legal matters that she had handled in the public sector until one year after she had departed state service; i.e., the Commission invoked relevant revolving door prohibitions. Ms. Gemma requested declaratory relief in Superior Court. The Court determined that an attorney contractually retained by the State was not engaged in state "employment" since she was not an employee, but an independent contractor. Given her status, the Court found that Ms. Gemma was not subject to the provisions of R. I. Gen. Laws §36-14-5(o) prohibiting her from accepting “other employment by any state agency” within one year after leaving state employment. The Court also stated that a broad reading of the provision was not warranted and that "…it is the legislatures role, if it so chooses, to add more inclusive or definitive language to [the revolving door prohibitions].”

The present matter also relates to appropriate conduct of a contractor under the Code of Ethics. Here, the vendor would be hired on a contractual basis to provide property inspections. This situation is comparable to the Gemma matter. Provided the contractor is not otherwise a public official or employee who falls within the definitions stated in the Code of Ethics, the provisions regarding appearing before one’s own agency, having a substantial conflict of interest with one’s duties in the public interest, and having other employment that may impair one’s independence of judgment, do not apply to an independent contractor. This is not unlike a vast array of other situations where a city may contract with someone to perform services rather than hire or appoint them, particularly given the advent of privatization of government services. Where such a practice is followed, those people are not subject to the Code of Ethics as it is presently written. Therefore, nothing in the Code of Ethics prevents the City of Newport from accepting bids from vendors that have testified, and may testify in the future, in proceedings before the Board of Tax Appeals and/or the Superior Court on behalf of litigants whose interests were contrary to those of the City of Newport.

Code Citations:

36-14-2

36-14-4

36-14-5(a)

Related Advisory Opinions:

97-141

94-23

88-47

Related Case Law:

Gemma v. R.I. Ethics Commission, No. 94-3404 (R.I. Sup. Ct. filed Sept. 17, 1994).

Keywords:

Code jurisdiction