Advisory Opinion No. 99-72

Re: Jeffrey S. Deckman

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 whether he may participate in the Board’s consideration of matters concerning Bell Atlantic Communications and Construction Services, Inc. (Bell Atlantic), given that both Bell Atlantic and the petitioner’s company, SyNet, Inc., have submitted competing bids for a state contract which has yet to be awarded.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the petitioner, a member of the Board of Examination and Licensing of Telecommunications Systems Contractors, Technicians and Installers, a state appointed position, from participating in the Board’s consideration of matters concerning Bell Atlantic Communications and Construction Services, Inc. (Bell Atlantic) since SyNet, Inc., the petitioner’s company, presently is in direct competition with Bell Atlantic for a state contract.

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). He indicates that both Bell Atlantic and SyNet, Inc., of which he is the owner and president, have submitted bids for a state contract, which has yet to be awarded. He represents that Bell Atlantic did not meet state licensing requirements to bid on the project and, therefore, its bid may be rejected.

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 Code of Ethics does not bar the petitioner 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, the Commission concludes that he must recuse from participation in any matter involving SyNet or any other company that is reasonably likely to be a direct competitor of SyNet. 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).

In a closely related advisory opinion, the Commission recently held that a member of the Board of Examination and Licensing of Telecommunications Systems Contractors, Technicians and Installers could participate in hearings regarding Bell Atlantic despite the fact that his company also had submitted a bid for the state contract at issue. However, there, the bid submitted on behalf of that Board member’s company had been rejected. See e.g., A.O. 99-59; Cf. 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).

Here, the contract at issue has not been awarded due to the uncertain status of Bell Atlantic’s licensure. Any action taken by the Board with regard to Bell Atlantic likely will affect the ultimate contract award and, therefore, the petitioner’s financial interests. Accordingly, the petitioner may not participate in the Board’s consideration of the matter given that Bell Atlantic and SyNet are in direct competition with each other for the contract. Notice of recusal should be filed with the Ethics Commission and the Board in accordance with R.I. Gen. Laws § 36-14-6. Finally, the petitioner is reminded that, pursuant to R.I. Gen. Laws § 36-14-5(e), he may not appear before the Board on behalf of SyNet while he serves on the Board and for a period of one year after he leaves that position.

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:

99-59
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