Advisory Opinion No. 99-59

Re: Laurence E. Ryan, Jr.

QUESTION PRESENTED

The petitioner, a member of the Board of Examination and Licensing of Telecommunications Systems Contractors, Technicians and Installers, a state appointed position, requests an advisory opinion as to 1) whether he may remain a member of the Board, given that he is privately employed as the president of Ryan Electric Construction, Inc. (Ryan); and 2) whether he may participate in the Board’s consideration of matters concerning Bell Atlantic Communications and Construction Services, Inc. (Bell Atlantic), the apparent low bidder on a project for which Ryan previously submitted a bid.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a member of the Board of Examination and Licensing of Telecommunications Systems Contractors, Technicians and Installers, a state appointed position, from serving on the Board while being privately employed as the president of Ryan Electric Construction, Inc. (Ryan), provided that he recuses himself from participation in the Board’s consideration of matters affecting Ryan and/or its interests. Although the petitioner may participate in Board matters concerning Bell Atlantic, he may not take any action which would adversely affect Bell Atlantic’s ability to compete with his company in the future. Finally, in the event that the bidding process is reopened due to action taken by the Board, Ryan may not submit a new proposal since the petitioner would have participated in disqualifying the low bidder.

The petitioner advises that the Board of Examination and Licensing of Telecommunications Systems Contractors, Technicians and Installers will be considering licensing issues regarding Bell Atlantic Communications and Construction Services, Inc. (Bell Atlantic) of Andover, Massachusetts. He indicates that the Board will consider whether Bell Atlantic is bidding on and performing work in Rhode Island without being properly licensed. He represents that Bell Atlantic is the apparent low bidder on the Rhode Island College Tele/Com Project. Ryan Electric Construction, Inc. (Ryan), of which the petitioner is the president, bid a portion of the Tele/Com Project to Data Communications Inc.(DCI). He further advises that the bid was not accepted due to DCI’s failure to submit a bid bond.

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 in the public interest. Substantial conflict is defined as a “direct monetary gain or a direct monetary loss” that accrues, by virtue of the public official’s activity, to that individual, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). He may not accept outside employment that will impair his independence of judgment as to his official duties or responsibilities. See R.I. Gen. Laws § 36-14-5(b). Additionally, the Code provides that a public official or employee may not use his office to obtain financial gain other than as provided by law. See R.I. Gen. Laws § 36-14-5(d).

The Commission concludes that the petitioner’s membership on the Board of Examination and Licensing of Telecommunications Systems Contractors, Technicians and Installers and simultaneous participation in the telecommunications industry does not constitute an inherent conflict of interest. The Code does not bar him from serving on the Board and participating in matters involving the telecommunications industry generally, or individual members of that industry, so long as those matters do not directly impact his business and/or his personal financial interests. See A.O. 98-151; A.O 96-70. However, pursuant to R.I. Gen. Laws § 36-14-5(e), he may not appear before the Board on behalf of Ryan while he serves on the Board and for a period of one year after he leaves that position.

Additionally, the petitioner should recuse from participation in any matter concerning a business that is reasonably likely to be a direct competitor of Ryan. See A.O. 98-131 (finding that the petitioner may serve on the Board of Bank Incorporation, but should recuse from participation in any matter involving his family’s loan and investment company or any other banking institution that is reasonably likely to be a direct competitor his family’s company); A.O. 96-70 (requiring a member of the Newport City Council and the Board of License Commissioners who owns a restaurant holding a liquor license to recuse himself from zoning or licensing matters that concern competitors); A.O. 96-24 (recognizing that an Alternate Member of the Newport Zoning Board of Review who is part owner and operator of a hotel and landlord to a restaurant and dance club, may not participate in matters affecting other hotels or matters affecting restaurant, dance clubs, or bed and breakfasts that are located within 500 feet of the petitioner’s businesses).

Here, the Tele/Com Project bid submitted on Ryan’s behalf was not accepted. Therefore, provided that Ryan and Bell Atlantic are not in present competition with each other on another project, the Code does not prevent the petitioner from participating in Board matters concerning Bell Atlantic. See A.O. 98-95 (opining that if a New Shoreham School Committee member bid on a school renovation project, but was not selected as the general contractor for the project, the member may participate in matters concerning the contract either after it is awarded or after the member is eliminated from consideration for the award, whichever comes first).

However, the petitioner may not take any action as a Board member which would prevent Bell Atlantic from effectively competing with his company on future projects. For example, while he may participate in action which would require Bell Atlantic to meet established licensing requirements, he may not participate in action which would establish an absolute bar to Bell Atlantic bidding on future projects in Rhode Island. Notice of recusal should be filed in accordance with R.I. Gen. Laws § 36-14-6. Finally, in the event that the Tele/Com Project bid process is reopened due to action taken by the Board, Ryan may not submit a new proposal since the petitioner would have participated in disqualifying the low bidder.

Code Citations:

36-14-5(a)
36-14-5(b)
36-14-5(d)
36-14-5(e)
36-14-6
36-14-7(a)

Related Advisory Opinions:

99-9
99-8
98-151
98-131
98-123
98-111
98-95
97-7
96-70
96-24
94-24
92-65
92-20
92-19
91-41

Keywords:

Business Interest
Competitor(s)
Financial Interest
Private Employment