Advisory Opinion No. 99-13

Re: Kevin M. Wilks & Marie A. Wilks

QUESTION PRESENTED

The petitioners, nurses for Rhode Island College and Zamburano Hospital, state employee positions, request an advisory opinion as to whether they may offer educational services to nurses employed by the state if the interested nurses ultimately receive reimbursement from the state for the petitioner's services.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioners from offering educational services to nurses employed by the state who may ultimately seek reimbursement from their employers for the petitioners' services. Here, the provisions of R.I. Gen. Laws § 36-14-5(h), which prohibits a public official from contracting with the state unless through an open and public bidding process, are not applicable since the petitioners are contracting with the individual nurses and not the hospitals operated by the state. Also, R.I. Gen. Laws § 36-14-5(d) would not prohibit the petitioners from providing such services unless there was some evidence that they used their official positions or confidential information from their positions to benefit their private business, which is not the case here. Finally, Commission Regulation 5011 regarding Transactions with Subordinates, would not prohibit the petitioners' activities referenced here.

Under the Code of Ethics public officials are precluded from entering into a contract with a state or 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). Based of this provision, we previously advised the petitioners, employees of Zamburano Hospital who operate a business that provides advanced training for nurses, doctors and teachers, that they may submit bids to the State Purchasing Department for educational seminars since their private business does not relate to their official duties and they do not participate in their official capacities in the bid development or oversight of educational seminars. See A.O. 97-84.

The petitioners now seek guidance as to whether Section 5(h) or any other provision of the Code would prevent them from providing services to nurses employed by the state if said nurses seek reimbursement from the state for their services. Recently, the Commission addressed a similar issue in an advisory opinion issued to a Cranston Police Detective who operates a private company that provides training in defensive tactics. See A.O. 98-112. See also 98-136. In that opinion, the Commission advised the petitioner that, under the provisions of R.I. Gen. Laws § 36-14-5(h), he only could market his product to police departments in the State if the contract for such services had been awarded through an open and public bidding process. However, the Commission also advised the petitioner that R.I. Gen. Laws § 36-14-5(h) would not prevent him from soliciting or contracting with individual police officers to provide self-defense training or services even if such officers later sought reimbursement for their respective departments since he [the petitioner] contracted with the individual officers and not the municipality.

Here, the petitioners seek to provide educational services and training to nurses and doctors employed by the State who may seek reimbursement for the cost of such services from their employers. As was the case with the question posed by the Cranston Police Detective, this situation would not violate R.I. Gen. Laws § 36-14-5(h) since the contracts are with the individual medical professional and not the state affiliated medical facility.

Also, R.I. Gen. Laws § 36-14-5(d) would not prohibit the petitioners from providing such services unless there was some evidence that they used their official positions or confidential information from their positions to benefit their private business, which is not the case here. The petitioners, however, are reminded that, when advertising or soliciting for their business, they should not use public resources or time. Finally, the Commission's new regulation regarding Transactions with Subordinates, Commission Regulation 5011, would not prohibit the referenced activities given the exceptions for transactions initiated by subordinates and those transactions that are in the normal course of a regular commercial business or occupation (which this appears to be).

Code Citations:

36-14-5(d)
36-14-5(h)
36-14-5001

Related Advisory Opinions:

98-136
98-112
97-84

Keywords:

Contracts
Private employment
Transactions with subordinates