Advisory Opinion No. 97-148

J. Michael Abbott,

A. QUESTION PRESENTED

The Petitioner, the Chairperson of the Town of Exeter Zoning Board of Review, a municipal appointed position, whose private employment is as a principal in a private architectural, planning and interior design firm, requests an advisory opinion as to whether the firm may accept the award of a contract from the towns of Exeter and North Kingstown for a joint alternative development study where the contract was awarded through an open and public bidding process and the Zoning Board of Review had no involvement with the bidding on the project and will not be involved with its oversight.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Chairperson of the Town of Exeter Zoning Board of Review, a municipal appointed position, and his private firm may accept the award of a contract from the towns of Exeter and North Kingstown for a joint alternative development study where the contract was awarded through an open and public bidding process and where the Zoning Board of Review had no involvement with the bidding on the project and will not be involved with its oversight. See R.I. Gen. Laws § 36-14-5(a), (b) and (d) (no actions taken by or required of the Zoning Board, hence no official action by the Petitioner that could affect his private financial interests). Also the awarding of the contract through an open and public bidding process is consistent with the requirements of R.I. Gen. Laws § 36-14-5(h). Finally, the provision in Section 36-14-5(e) of the Code of Ethics that prohibits a public official or employee from "representing him or herself" before an agency of which he or she is a member is not a factor here in that any actions by the towns in response to the study of alternative development necessarily would be the responsibility of the towns' respective town councils, not their zoning boards.

C. DISCUSSION

1. Facts

The Petitioner, J. Michael Abbott, is Chair of the Town of Exeter’s Zoning Board of Review, a municipal appointed position. His private employment is as a principal in Newport Collaborative Architects, Inc., an architectural, planning and interior design firm. The towns of Exeter and North Kingstown recently received a joint grant from the Pawcatuck Water Conservation group, a non-profit corporation, funding a Zoning Alternatives Project to study alternative development scenarios for a parcel of land that straddles the boundaries of the two towns. Depending on the results of the study one or both of the towns may consider changes in zoning designations. In Exeter, while the Zoning Board deals with issues relating to the zoning boundaries as established, proposed changes to the town’s zoning designation exclusively are the province of the Town Council.

An ad hoc committee formed by the Exeter and North Kingstown Town Councils developed specifications and published a request for proposals (RFP) for the project. The Exeter Zoning Board of Review had no role in that process, nor will it have an oversight responsibility relating to the project. The Petitioner’s firm submitted one of the two proposals received in response to the RFP. The committee and the respective Town Councils reviewed the submissions and tentatively selected the Petitioner’s firm for the project. Because the Petitioner is an appointed official in the Town of Exeter, the selection committee held the contract award in abeyance pending receipt of an advisory opinion from this Commission

2. Analysis

The Code of Ethics prohibits public officials from 1) taking any official action through which they might obtain a private financial benefit (R.I. Gen. Laws § 36-14-5(d)), 2) having or accepting private employment which would impair their independence of judgment as to official duties and responsibilities (R.I. Gen. Laws § 36-14-5(b)), and 3) having any interest, financial or otherwise, which is in substantial conflict with the proper discharge of their duties and responsibilities in the public interest (R.I. Gen. Laws § 36-14-5(a)). As a member of the Exeter Zoning Board, the Petitioner had no involvement with the development of bid specifications for the project at issue, nor did his board participate in the review or selection of bids received in response to the RFP. Since no official action has been or will be taken by the Petitioner as a member of the Zoning Board, the proscriptions outlined above do not bar the awarding of the contract for alternative development study to his private firm.

The towns of Exeter and North Kingstown awarded (tentatively) the referenced contract through an open and public bidding process, "including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded," as required by R.I. Gen. Laws § 36-14-5(h). The Petitioner's firm properly submitted a bid in response to the RFP and received the contract award through an open and public process. The Petitioner and his firm, therefore, may accept the contract award without qualification. Finally, the provision in Section 36-14-5(e) of the Code of Ethics that prohibits a public official or employee from "representing him or herself" before an agency of which he or she is a member is not a factor here in that any actions by the Town of Exeter in response to the study of alternative development necessarily would be the responsibility of the Town Council, not the Zoning Board. While the Exeter Zoning Board maintains responsibility for reviewing, for example, requests for variances under the Town's existing zoning rules and regulations, the Town Council alone has the authority to consider and affect any changes to the Town's zoning designations, which is the sort of action that would necessary in this instance.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(c)

36-14-5(d)

36-14-5(e)

36-14-5(h)

Related Advisory Opinions:

97-66

97-37

97-24

95-90

95-104

95-41

95-24

Keywords:

Contracts

Private employment