Advisory Opinion No. 98-49

Re: Craig R. Carrigan, P.E.

QUESTION PRESENTED

The Petitioner, an Engineer hired by the Town of Johnston to perform contractual services for the Town as needed at his own facilities, requests an advisory opinion as to whether he may appear before the Town of Johnston Planning Board as the engineer of record on a project to be reviewed by the Board if another engineer retained by the Town reviews and completes all necessary inspections for the project.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner from appearing before the Planning Board in matters relating to a project in which he serves as the engineer of record since, as an independent contractor, he is not subject to the conflict of interest provisions set forth in the Code. The Code of Ethics provides that state and municipal elected officials, state and municipal appointed officials, and employees of state and local government, boards, Commissions, and agencies are covered by the Code. See R.I. Gen. Laws § 36-14-4. An employee is defined in the statute as any full-time or part-time employee in the classified, non-classified and unclassified service of the state or of any city or town within the state, any individual serving in any appointed state or municipal position, and any employee of any public or quasi public state or municipal board, Commission, or corporation. See R.I. Gen. Laws § 36-14-(2)(3).

As to whether independent contractors are employees, the Superior Court has held that they are not employees, as the term is defined in the Code of Ethics. See Suzanne Worrell Gemma, et al. v. Rhode Island Ethics Commission (C.A. No. 94-3404, filed Sept. 17, 1994) (concluding that an attorney contractually retained by the State was not an employee, but an independent contractor and, accordingly, was not subject to the revolving door provisions set forth in R.I. Gen. Laws § 36-14-5(o)). Recently, based on this ruling, we concluded that vendors hired by City of Newport for property inspections were independent contractors and not employees and, accordingly, were not bound by the conflict of interest provisions in the Code of Ethics. See A.O. 97-147 (advising the City of Newport Tax Assessor that the City could accept bids for property inspection services from vendors that had testified and may testify 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 since the vendors, as independent contractors, were not covered by the conflict of interest provisions contained in the Code of Ethics).

The present matter also relates to appropriate conduct of a contractor under the Code of Ethics. Here, the Town hired the Petitioner on a contractual basis to provide engineering services at his own facilities on an as needed basis. This situation is comparable to that in the Gemma matter and in the above-cited advisory opinion request. As such, the Petitioner is not an employee subject to the conflict of interest provisions in the Code.

In any event, the Petitioner advises that he plans to recuse from participating as an engineer in any matters relating to the project in which he serves as the engineer of record and that the Town will retain a separate engineer to perform all necessary inspection and review work relating to the project. These steps would satisfy the relevant sections of the Code of Ethics even if the Petitioner were covered since he would not be participating in a matter in which he had an interest in substantial conflict. See R.I. Gen. Laws § 36-14-5(a). See e.g., A.O. 95-32 (advising the Bristol Building Official that the Code of Ethics would not permit him to inspect or review plans of a building in which his son performed services of an architect and that he should take steps to have a building official of another town inspect any building in which his son provided architectural services). Also, Section 5(e) of the Code, which prohibits an employee from appearing before the Board that employs him, would not prohibit him from appearing before the Planning Board since he had been hired by the Town and not the Planning Board. See R.I. Gen. Laws § 36-14-5(e)(1).

Code Citations:

36-14-2

36-14-4

36-14-5(a)

36-14-5(e)

Related Advisory Opinions:

97-147

97-141

95-32

94-23

88-47

Related Case Law:

Gemma v. R.I. Ethics Commission, (R.I. Sup. Ct.,

C.A. No. 94-304, filed September 17, 1994)

Keywords:

Code jurisdiction