Advisory Opinion No. 98-123 Re: Normand J. Laliberte, Jr. A. QUESTION PRESENTED The Petitioner, a Woonsocket City Councilor, a municipal elected position, requests an advisory opinion as to whether he may 1) enter into a lease with the City of Woonsocket for a coffee shop in the Woonsocket Labor Museum, given that the City received no other response to a Request for Proposals (RFP)for the location; 2) vote on local improvements to the surrounding area; and 3) vote on salaries for the Departments of Economic Development and Planning & Development, given that members of these Departments comprise the RFP selection committee. B. SUMMARY It is the opinion of the Rhode Island Ethics Commission that Petitioner, a Woonsocket City Councilor, a municipal elected position, may enter into a lease with the City of Woonsocket for operation of a coffee shop in the Woonsocket Labor Museum. The Petitioner did not participate in developing the Request for Proposals (RFP), and the RFP was subject to an open and public bidding process. See R.I. Gen. Laws § 36-14-5(h). In the event that he is awarded the lease, however, various Code provisions prohibit his official action on matters before the City Council. See R.I. Gen. Laws §§ 36-14-5(a), 5(b), and 7(a). The Petitioner should recuse from participating and/or voting on any matter concerning the lease and/or his business, including local improvement issues, that could affect his business or businesses that are in direct competition with his coffee and sandwich shop. The standard for determining whether a matter could affect a public official or his business interests is whether it is “reasonably foreseeable.” Also, he should not participate and/or vote on salaries for the Departments of Economic Development and Planning & Development, given that members of these Departments comprise the RFP selection committee. Section 5(e) of the Code prohibits him from appearing before the Council regarding the lease, or matters arising thereunder, for a period of one year after leaving his office. C. DISCUSSION 1. Facts The Petitioner advises that he submitted a proposal to the City of Woonsocket in response to its Request for Proposals (RFP) for a coffee and sandwich shop in the Woonsocket Labor Museum. Despite public advertisement of the RFP on two separate occasions, his proposal was the only response received. The Petitioner represents that he did not participate in the RFP development process. The RFP selection committee is comprised of members of the Departments of Economic Development and Planning & Development. The Petitioner seeks inquires as to whether he may enter into a lease with the City, and if so, whether he may vote on local issues affecting the area near the Museum, as well as on salaries for the Departments of Economic Development and Planning & Development. 2. Analysis Under the Code of Ethics, the Petitioner 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 and employment in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). He may not accept outside employment that will impair his independence of judgment as to his official duties or employment. R.I. Gen. Laws § 36-14-5(b). He also may not use his public employment or confidential information received through his public employment to obtain financial gain for himself or for a business which he represents. R.I. Gen. Laws § 36-14-5(d). Additionally, no person subject to the Code or 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). Under R.I. Gen. Laws § 36-14-5(e), the Petitioner may not “represent [himself] before any state or municipal agency of which he . . . is a member,” for a period of one year after he severs his position with his agency. Finally, Commission Regulation 36-14-5003 provides that an official may be deemed to have violated Code provisions if recusal occurs with such frequency as to give the appearance of impropriety. In previous advisory opinions, the Commission has advised municipal employees and officials seeking to contract with or provide services to a municipality that they only could 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) 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, the contract at issue was twice subject to an open and public bidding process, and the Petitioner’s proposal was the only response received. He did not participate in the RFP development process, nor will he have any involvement regarding the awarding of the lease. In this instance the Petitioner is neither responsible for the decision as to the awarding of the lease, nor does he participate in the process that leads to the awarding of the lease. Therefore, absent some other prohibited involvement or interest, the Code does not prohibit the award merely because the Petitioner is a member of the City Council. In the event that the Petitioner is awarded the lease, however, various Code provisions restrict some of his official actions as a City Councilor. First, he may not participate and/or vote on any matter concerning the lease and/or his business. This includes local issues that could affect his business, such as road improvements or the construction of parking garages nearby. This also applies to direct competitors of his business. See e.g. A.O.96-24 and A.O. 96-70. The standard for determining whether a particular matter falls within these prohibitions is whether it is reasonably foreseeable that such issues may have a financial impact upon the Petitioner and/or his business. Commission Regulation 36-14-7001. Further, the Code prohibits the Petitioner's appearance before the Council regarding the lease or any matters arising thereunder. See R.I. Gen. Laws § 36-14-5(e). Section 5(e)(4) extends this prohibition for a period of one year following the date of his official severance from office. While this would not prevent him from submitting rental payments to the City, a ministerial task, in the event of a breach of the lease or other substantive dispute, he may not appear before the Council to represent his interests. Additionally, the Commission concludes that the Petitioner should recuse himself from participation and/or vote on salaries for the Departments of Economic Development and Planning & Development. Determining said salaries, where the RFP selection committee is comprised of members of these Departments, would constitute a substantial conflict of interest and would likely impair his independence of judgment. Notice of recusal on any of these matters should be filed with both the City Council and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. We caution and advise the Petitioner that by entering into the lease, he voluntarily places himself in a situation where his public responsibilities and his private financial interests may overlap. Given the scope of issues before the Council that may financially affect his business, he may find himself recusing on a frequent basis which may implicate the provisions of Commission Regulation 36-14-5003, Limitations on recusal. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-5(e) 36-14-5(h) 36-14-6 36-14-7(a) Related Advisory Opinions: 98-86 98-50 98-16 97-148 97-136 97-72 97-66 97-50 97-38 96-70 96-41 96-24 95-60 95-24 93-87 89-88 Keywords: Business interest Contracts Private employment Recusal