Advisory Opinion No. 98-112 Re: Frank J. Gallo A. QUESTION PRESENTED The Petitioner, a Detective for the Cranston Police Department, a municipal employee position, who also operates a private business, Police Action Control Concepts Inc., that provides training in defensive tactics (self-defense) to local and out-of-state police departments, requests an advisory opinion as to whether a) he may operate his self-defense\use-of-force training business while serving as a Detective for the Cranston Police Department; and b) whether he may market his business services to the Cranston Police Department and other local and out-of-state police departments. B. SUMMARY It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner from operating a business that provides self-defense\use-of-force training to local and out-of-state police agencies provided that he does not in any way use his public position or public resources to support his business. However, under the provisions of R.I. Gen. Laws § 36-14-5(h), the Petitioner may only market his product to police departments in the state, other than the City of Cranston, if the contract for such services is awarded through an open and public bidding process. As to the City of Cranston, the Petitioner cannot sell additional materials regarding his self-defense system to the Cranston Police Department based on his previous involvement and given that he would be frustrating the purposes of the conflict provisions regarding contracts and using his public position for pecuniary gain. See R.I. Gen. Laws § 36-14-5(d). The Petitioner, however, may continue to use his program as a self-defense instructor for the Department provided that he does not receive additional compensation beyond his normal salary or overtime benefits for his service. Also, this opinion would not prevent the Petitioner from soliciting or contracting with individual police officers from any municipality to provide self-defense training or services. C. DISCUSSION 1. Facts The Petitioner is a Detective with the Cranston Police Department. As part of his official duties, the Petitioner serves as defensive tactics (self-defense) instructor for the Department. In his private capacity, the Petitioner also operates a self-defense training business, Police Action Control Concepts, Inc. As part of this business, the Petitioner has developed a new self-defense program, Use Of Force Management System, which he plans to market to local and out-of-state police departments for compensation. Recently, the Petitioner asked for and received permission from departmental officials to teach his system of self-defense, the Use Of Force Management System, while serving as a departmental instructor. (Previously, the Cranston Police Department used another method of self-defense training.) The Petitioner advises that officials from the Department would now like to adopt his system of self-defense for use throughout the entire Department. The Petitioner seeks guidance as to whether, assuming the Department adopts his system, he can sell manuals to the Department and certify instructors in his program to provide training to individuals in the Department. 2. Analysis A person subject to the Code of Ethics may not use his or her public employment or confidential information received through his or her public employment to obtain financial gain for him or herself or for a business which they represent. R.I. Gen. Laws § 36-14-5(d). In addition, no person subject to the Code nor any business associate of said person may enter into a contract with a municipal agency unless "the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded." R.I. Gen. Laws § 36-14-5(h). This section provides that "contracts for professional services which have been customarily awarded without competitive bidding shall not be subject to competitive bidding if awarded through a process of public notice and disclosure of financial details." Id. Previously, we consistently have advised municipal employees seeking to contract with or provide services to a municipality that they could only do so if the municipality used an open and competitive bidding process. See e.g., A.O. 97-72 (opining that the Charlestown Harbormaster, who also owned and operated a private business that sold and serviced diving equipment, could sell equipment to the Town only if it adhered to an open and public bidding process for such purchases). We have provided for an exception to this provision if the service or product to be marketed by the employee is of nominal or incidental value. See A.O. 98-48 (advising the Town of Little Compton that neither the Town nor a Little Compton firefighter would violate the Code of Ethics if the firefighter, on his own time, performed small engine repairs that generally did not exceed $40 per repair or $500 on an annual basis given the nominal and incidental value of the repairs). We also have concluded that a state employee need not comply with the competitive bidding requirements of section 5(h) if his business was the sole supplier for the product and the contract complied with the State Purchases Act criteria for sole source procurement. (Under the State Purchases Act, R.I. Gen. Laws § 37-2-1 et. seq., a contract may be awarded as sole source procurement only if the chief purchasing officer for the state or designated person "determines, in writing, that there is only one source for the required supply [or] service." R.I. Gen. Laws § 37-2-21.) See A.O. 98-33 (concluding that the Legal Counsel to the Commissioner of Higher Education and Rhode Island College could contract with Rhode Island College to sell a unique computer software program developed by him and his business associate to assist with legal audits of schools and universities without open and public bidding provided that the contract complied with the State Purchases Act criteria for sole source procurement). Additionally, 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. See A.O. 95-60 (finding Narragansett Town Engineer would violate the Code of Ethics were he to accept a subcontract from Alpine Ski & Sports in the event that said company, also his employer, is awarded a contract from the Narragansett Town Council to provide scuba diving training to the Narragansett Police Department Dive Team given that the petitioner provided input as to the training involved for scuba diver certification) and A.O. 98-86 (concluding that a Westerly Town Councilor could not enter into lease arrangement unless it was pursuant to an open and public process nor could he submit a bid if he had participated in or otherwise influenced the bid development process). Here, after considering the relevant provisions of the Code and past advisory opinions, we conclude that the Code of Ethics does not prohibit the Petitioner from operating a private business that provides self-defense training and markets related materials provided that he does not use public resources or time for his business and he does not actively use his public employment to solicit private business. See A.O. 98-33. The Petitioner may, in conjunction with his business, acknowledge that he is a detective with the Cranston Police Department. He may not, however, solicit business while he is performing public duties. As to his second question, whether he may market his self-defense program to the Cranston Police Department and other local police departments, we conclude that he may not now sell additional material to the Cranston Police Department and, as to other police departments within Rhode Island, he may do so only if the contract for services or supplies is awarded through an open and public process as specified in R.I. Gen. Laws § 36-14-5(h). (The provisions of Section 5(h) are broad and apply to doing business with any municipality or the state, not only the municipality that employs the employee.) The intent of section 5(h) is to prevent public officials and employees from gaining a competitive advantage over competitors. This intent clearly would be frustrated if the Petitioner, after gaining a position as a self-defense instructor for the Cranston Police Department, his own Department, were permitted to sell his program and related materials to the Department without a competitive bidding process after convincing officials to use his system for self-defense training in place of another. Additionally, even assuming a competitive bidding process takes place now, it cannot be considered to be an open and public process as to the Petitioner since he has participated in the early stages of bid development. These facts also give rise to a probable violation of Section 5(d) given the use of his position for pecuniary gain. Also, this analysis still would apply if the Petitioner resigned from his position as a self-defense instructor but remained a Detective since he would remain a municipal employee. Finally, the Petitioner's request does not fall within any of the exceptions to this provision. A contract for self-defense training or related products is not a contract for professional service. That exception normally covers contracts for legal, medical, architectural or accounting services. According to the State Purchasing Officer, under the State Purchases Act R.I. Gen. Laws § 37-2-1 et. seq., a contract to provide self-defense training would have to be advertised for a competitive bid. Also, under R.I. Gen. Laws § 45-55-14, relating to the award of municipal contracts, the only service contracts that are exempt from the rules and regulations relating to competitive bidding are for the procurement of an attorney, physician or dentist. In the latest legislative session, the General Assembly amended this provision to include contracts for energy or energy related services. Also, this is not a situation where the contract for services would be of nominal or incidental value and there is no evidence to suggest that he is the sole provider of self-defense\use-of-force products in the state or region. Although we conclude that the Petitioner only may sell his program and related materials to municipalities other than Cranston if he is awarded the contract through an open and public bidding process, the Code of Ethics would not prohibit the Petitioner from soliciting or contracting with individual police officers from any municipality to provide self-defense training or services since such contracts would not fall within the scope of Section 5(h). Also, the Petitioner may continue to use his program as a self-defense instructor for the Department provided that he does not receive additional compensation beyond his normal salary or overtime benefits for his services. Cf D.R. 95-2 (ruling that the Code of Ethics would not permit state employees empowered to serve process in their official capacities to service process outside of normal working hours for compensation since such private employment would impair their independence of judgment and conflict with the proper discharge of their official duties). Code Citations: 36-14-5(d) 36-14-5(h) Related Advisory Opinions 98-86 98-48 98-33 Related Advisory Opinions Continued: 97-72 97-35 96-41 95-60 95-24 94-51 94-5 Keywords: Contracts Private employment