Advisory Opinion No. 99-10

Re: Richard H. Aitchison

QUESTION PRESENTED

The petitioner, the Providence License Administrator, a municipal employee position, requests an advisory opinion as to whether he may serve as a paid consultant on a per-diem basis to the Mayor of Johnston regarding labor relations and other issues given 1) his position with the City of Providence and 2) that he is a retired firefighter receiving a pension and a former member of the Johnston Fire Department Pension Board.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Providence License Administrator, a municipal employee position, may serve as a paid consultant on a per-diem basis to the Mayor of Johnston regarding labor relations and other issues provided that such services are awarded through a process of public notice and disclosure of financial details as provided in Section 5(h) of the Code of Ethics. We also note and accept the petitioner's representation that he will recuse himself from any negotiation or consultation on matters with reference to pay increases for the fire department given that such raises may result in a cost of living adjustment to the petitioner's retirement benefits. Additionally, based on the petitioner's representations there is no interrelationship between his position as Providence License Administrator and the consultant position in Johnston that would impair his independence of judgment or serve as a bar to his acceptance of the position in Johnston. See R.I. Gen. Laws § 36-14-5(b).

Under the Code of Ethics, a public official may not accept other employment that would impair his/her independence of judgment as to his/her official duties or require him/her to disclose confidential information. See R.I. Gen Laws §§ 36-14-5(b) 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.

The petitioner represents that he would be providing consultant services to the Mayor of Johnston on matters concerning labor relations and other issues. The Commission has advised persons subject to the Code of Ethics that the providing of certain professional services to municipalities or the state that the service or contract must be awarded through a process of public notice and disclosure of financial details. See A.O. 98-87 (Town Councilor could accept consultant position with state agency to oversee certain of its advertising activities); A.O. 93-32 (School Committee member could provide psychology and educational consulting services to the municipality, provided that those services are awarded through an open and public process including prior private notice and subsequent disclosure of all proposals considered and contracts awarded). Compare with A.O. 98-112 (Police Officer could only do business or provide self-defense training services to other municipal police departments if the department went through an open and public competitive bidding process since such services were not "professional services" and without regard to whether such matters normally are subject to bidding requirements under the municipal purchasing rules). Here, the petitioner's consulting work is in the nature of a professional service. Therefore, the petitioner may accept the referenced position if Johnston provides public notice and disclosure of financial details of the contract as required by the Code of Ethics.

Code Citations:

36-14-5(b)
36-14-5(h)

Related Advisory Opinions:

98-112
98-87
97-50
93-32

Keywords:

Professional services contracts
Prospective employment