Advisory Opinion No. 98-79

Re: Michael L. Williams

QUESTION PRESENTED

The Petitioner, the Chief of the Ashaway Volunteer Fire Association (AVFA), a regional employee position, requests an advisory opinion as to whether under the Code of Ethics the AVFA may retain TnT Metal Fabrication (TnT) to repair fire apparatus where the owner of TnT is the Petitioner's first cousin and the brother of two of the AVFA’s Assistant Chiefs.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Ashaway Volunteer Fire Association (AVFA) may not retain TnT Metal Fabrication (TnT) given the owner's familial relationship with the Chief and the Assistant Chiefs. The AVFA may, however, request proposals and award a contract to repair fire apparatus through an open and competitive bidding process. If the AVFA engages in such a process neither the Chief nor the interested Assistant Chiefs may participate in it, nor may they oversee or exercise any discretion relating to the contract for repairs if it is awarded to TnT.

Under the Code of Ethics, a public official 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 in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). Pursuant to R.I. Gen. Laws § 36-14-5(d), a public official also is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself or a family member. Additionally, the Code of Ethics prohibits a public official or any person within his family from entering into a contract with a public agency unless the contract is awarded through an open and public process. See R.I. Gen. Laws § 36-14-5(h).

Here, the Petitioner inquires as to whether the AVFA may retain TnT, a local repair facility owned and operated by an individual who is his first cousin and the brother of two of the Assistant Chiefs. The Petitioner represents that the repair rates to be charged by TnT are generally the same as those charged by the facility that previously had maintained the vehicles. As to this issue, we find that, given his and his Assistant Chiefs' relationship with the owner of TnT, the AVFA may hire TnT only if it adheres to an open and public bidding process and TnT submits the winning bid, as required by R.I. Gen. Laws § 36-14-5(h). Because TnT is a likely bidder for the contract, neither the Petitioner nor the Assistant Chiefs may participate in the formulation of the bid or the selection process. Also, should TnT be awarded the contract for repairs through an appropriate open and public process, neither the Petitioner nor the interested Assistant Chiefs may oversee, supervise, or perform any discretionary (as compared to ministerial) act relating to the contract for repairs. Such participation would be in substantial conflict with the discharge of their duties of employment in the public interest as prohibited by R.I. Gen. Laws § 36-14-5(a). See A.O. 95-116 (advising the Senior Building Construction Inspector for the Housing Department at URI that he could not oversee the work performed under a contract or issue payment for work completed by his brother pursuant to this contract since he would be acting where he had an interest in substantial conflict with the discharge of his duties of employment in the public interest); A.O. 97-35 (opining that a member of the Bristol Town Council should not participate and vote on any matter relating to florist services where her husband operated a florist shop that did business with the School District).

Code Citations:

36-14-5(a)

36-14-5(h)

36-14-7(a)

Related Advisory Opinions:

98-42

97-72

97-35

96-41

95-116

95-60

95-24

94-51

94-5

Keywords:

Contracts

Family: public employment

Nepotism