Advisory Opinion No. 98-61

Re: Richard Padula

QUESTION PRESENTED

The Petitioner, a former member of the West Warwick Town Council, a municipal elected position, requests an advisory opinion as to whether he or his insurance firm may submit a bid to the West Warwick Town Council, acting as the West Warwick Sewer Commission, to provide insurance coverage for the Town's sewer treatment plant.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former member of the West Warwick Town Council, a municipal elected position, whose private employment is as a property casualty insurance agent, may participate in the preparation and submission of a bid by his employer to the Town Council and/or the Sewer Commission to provide insurance for the Town's sewer treatment plant provided that a) he did not participate in the bid development process as a member of the Town Council; b) the contract is awarded through an open and public bidding process; and c) he does not appear personally before the Town Council or the Sewer Commission regarding this bid proposal.

The Petitioner served as an elected member of the West Warwick Town Council until recently when he moved out of Town. Historically, the Town Council also has acted as West Warwick’s Sewer Commission. The Sewer Commission, however, is now in the process of separating from the Town and establishing itself as an independent entity. The Petitioner anticipates that the Sewer Commission will request competitive bids for insurance coverage for the Town's sewer treatment plant. The Petitioner, who works in the property casualty insurance field, inquires as to whether his insurance firm may submit a bid in response to this request.

The Code of Ethics provides that a public official or employee may enter into a contract with a state or municipal agency provided the contract has been awarded through an open and public process, including public notice and subsequent public disclosure of all proposals considered and contracts awarded. See R.I. Gen. Laws § 36-14-5(h). The Petitioner, who recently resigned from the West Warwick Town Council, remains subject to this provision until the expiration of one year from the date that he resigned from the Town Council. See R.I. Gen. Laws § 36-14-5(e)(4). Therefore, the Petitioner may participate in the preparation and submission of his employer’s response to a request for insurance coverage proposals by the Town provided that a) the contract is awarded through an open and public bidding process; and b) he did not participate in the bid development process as a member of the Town Council/Sewer Commission. The Commission previously has ruled that officials who participate in the bid development process place themselves in a privileged position with respect to other bidders and consequently diminish, if not eliminate, the "open and public process" required under the Code. See e.g., A.O. 95-60.

Also, if the Petitioner or the Petitioner's firm bids on the proposal, pursuant to R.I. Gen. Laws § 36-14-5(e)(4), he may not appear personally before the Town Council or the Sewer Commission in any matter relating to the bid or contract unless it is ministerial in nature or the Ethics Commission grants a hardship exemption. Section 5(e)(4) prohibits a former public official from representing his or others' particular financial interests before the public body to which he belonged until the expiration of one year from the date of his severance from that public body.

Code Citations:

36-14-5(e)

36-14-5(h)

Related Advisory Opinions:

97-148

97-90

97-84

97-72

97-66

97-50

96-41

95-60

95-41

95-24

94-5

Keywords:

Acting as agent

Contracts

Private employment