Advisory Opinion No. 99-37

Re: Stephen Durkee

QUESTION PRESENTED

The petitioner, a Providence City Plan Commission (CPC) member, a municipal appointed position, who serves as Chairperson of the CPC’s Old Harbor District Project Advisory Committee, requests an advisory opinion as to whether, as a private architect and planner, 1) he may participate in a planning study by the Jewelry District Association (JDA) that will include part of the Old Harbor District; 2) he may hire a former Providence Department of Planning employee as a project consultant; and 3) he may pursue planning work on the Mayor’s “New Cities” proposal, given that his firm has significant housing and commercial projects throughout the City.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Providence City Plan Commission (CPC) member, a municipal appointed position, who serves as Chairperson of the CPC’s Old Harbor District Project Advisory Committee, may accept private employment on the Jewelry District Association’s (JDA) planning study provided that 1) he recuses from participation when matters affecting the JDA and/or its interests appear before the CPC; 2) he does not appear before the CPC and/or its Project Advisory Committee on matters relating to the JDA study and 3) he resigns his position with the Advisory Committee. In addition, we conclude that he may hire a former Department of Planning employee as a project consultant. The employee herself, however, may need to seek an advisory opinion depending on whether her new duties in the private sector would require her to appear before her former employer within a year of her terminating employment. Further, the petitioner may pursue planning work on the Mayor’s “New Cities” proposal, provided that 1) any contract is awarded through an open and public process; 2) he recuses from participation when matters affecting the “New Cities” proposal appear before the CPC; and 3) he does not appear before the CPC on matters relating to the “New Cities” proposal.

The petitioner is a principal in the architectural firm of Durkee & Brown, which serves as the architect for approximately 200 apartments in Providence and has significant housing and commercial projects throughout the City. He advises that he is interested in bidding on a planning study which is being sponsored and paid for by the City’s Jewelry District Association (JDA). He represents that part of the Old Harbor District is included in the area covered by the study. The petitioner also serves as Chair of the CPC’s Old Harbor District Project Advisory Committee. He indicates that he wishes to hire a recent former employee of the Providence Department of Planning as a consultant on the JDA study. He further advises that he is interested in pursuing planning work on the Mayor’s “New Cities” proposal.

The Commission concludes that, although the petitioner may accept private employment on the JDA’s planning study and pursue planning work on the “New Cities” proposal, by doing so various Code provisions would affect and/or restrict his official actions as a member of the CPC. In the event that he accepts such private employment, he should recuse from participation when matters affecting the JDA and/or its interests and/or the “New Cities” proposal appear before the CPC. See R.I. Gen. Laws §§ 36-14-5(a), 5(b), 5(d). Further, R.I. Gen. Laws § 36-14-5(e) prohibits the petitioner from appearing before the CPC and the Old Harbor District Project Advisory Committee regarding any project in which he and/or his firm is involved. Section 5(e)(4) extends this prohibition for a period of one year following the date of his official severance from office. As to the JDA study, given that the study includes a portion of the Old Harbor District, it is reasonably foreseeable that the petitioner’s actions as Chair of the Old Harbor District Project Advisory Committee may impact the JDA and/or the petitioner financially given the interrelationship of the planning in these areas. Therefore, in the event that he accepts such employment with the JDA, and absent a showing that his continued participation as its Chair would not have a financial impact on himself or his company, the petitioner should resign from the Project Advisory Committee.

Section 5(h) of the Code provides that public officials, 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. As a member of the CPC, the petitioner’s involvement in the “New Cities” proposal falls squarely within this prohibition.

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 City of Providence proceeds with an open and public bidding process on the “New Cities” proposal, the petitioner and/or his firm may submit a bid only if he has not participated in or otherwise influenced the bid development process as a member of the CPC. Also, if he and/or his firm bid on the proposal, he should recuse from any future participation as a CPC member in matters concerning the proposal. Notice of recusal on any of these matters should be filed with both the City of Providence and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6.

Although the Code does not bar the petitioner from pursuing such private employment in the City of Providence while simultaneously serving on the CPC, the relevant statute and regulations require that the he be particularly vigilant as to the matters in which he then participates as a public official. We also note that if petitioner finds that he is faced with numerous potential conflicts which would require his recusal on a regular basis, Regulation 36-14-5003’s limitation on recusals may become a factor.

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)
36-14-5003

Related Advisory Opinions:

99-10
99-2
98-123
98-112
98-86
98-50
97-148
97-72
97-66
97-50
95-60
95-24
93-87
92-13
89-88

Keywords:

Acting as agent
Contracts
Private employment
Recusal