Advisory Opinion No. 98-86

Re: Brian H. McCuin

QUESTION PRESENTED

The Petitioner, a Westerly Town Councilor, a municipal elected position, requests an advisory opinion as to whether it is a conflict of interest for him to negotiate with the Westerly School Department concerning the Department leasing commercial rental property that he owns.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics bars the Petitioner, a Westerly Town Councilor, a municipal elected position, from negotiating with the School Department concerning the rental of commercial property that he owns. Section 5(h) of the Code provides that public officials and employees, as well as their relatives and business associates, may not enter into contracts with any state or municipal agency “unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure or all proposals considered and contracts awarded.” R.I. Gen. Laws § 36-14-5(h). The only exceptions to this strict prohibition recognized by the Commission have been for emergencies and isolated purchases of nominal value. See A.O. 97-72, A.O. 98-48, A.O. 98-79. The proposed leasing arrangement between the Petitioner and the Westerly School Department falls squarely within this prohibition. Therefore, absent an open and public bidding process the Petitioner may not enter into a leasing arrangement with the Town or one of its departments.

Additionally, the prohibitions affecting the Petitioner may extend beyond the public bidding requirement. The Commission previously has found that public officials who participate in the bid development process for a public entity place themselves, their family members and their business associates in a privileged position with respect to other bidders. By so doing they contravene the "open and public process" required under the Code. Therefore, if the School Department proceeds with an open and public bidding process, the Petitioner may submit a bid only if he has not participated in or otherwise influenced the bid development process. The ability to affect the funding available to the School Department for any such leasing arrangement likely would constitute the type of influence prohibited by the Code of Ethics. Also, if the Petitioner bids on the lease, he must recuse himself from any future participation as a Town Council member in matters concerning the lease.

Finally, Commission Regulation 5008, which prohibits public officials and employees from appearing before agencies over which they exercise fiscal or jurisdictional control, is not applicable here. Although as a member of the Town Council the Petitioner exercises fiscal and jurisdictional control over the School Department, he would not be appearing before that agency “for compensation” and he would be representing himself, not acting as an agent or attorney for another person or organization.

Code Citations:

36-14-5(d)

36-14-5(h)

Related Advisory Opinions:

98-79

98-65

98-50

94-48

94-46

97-136

97-72

97-66

97-50

97-35

96-41

95-60

95-24

89-88

Keywords:

Contracts

Property interest