Advisory Opinion No. 99-83

Re: Daniel R. Peloquin

QUESTION PRESENTED

The petitioner, a Woonsocket Planning Board member, a municipal appointed position, who is privately employed as an architect, requests an advisory opinion as to whether he may be awarded a contract to provide architectural services to the City of Woonsocket School Department.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Woonsocket Planning Board member, a municipal appointed position, who is privately employed as an architect, may accept a contract to provide architectural services to the City of Woonsocket School Department, provided that the contract is awarded pursuant to an open and public bidding process.

The petitioner advises that the Woonsocket Planning Board annually presents a Capital Improvement Program to the City Council, recommending budget expenditures and long-term financing for capital improvements for various municipal departments for five year periods. During review of the 1999-2004 Program, he represents that he recused himself from discussion and vote on all issues relating to the Woonsocket School Administration’s requests, given that he might submit future proposals to the School Department for architectural services. He indicates that he subsequently responded to the School Department’s Request for Proposals (RFP) for middle school roof repairs and was recommended as the low bidder.

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 and employment in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). He may not accept outside employment that will impair his independence of judgment as to his official duties or employment. See R.I. Gen. Laws § 36-14-5(b). He also may not use his public employment or confidential information received through his public employment to obtain financial gain for himself or for a business which he represents. See R.I. Gen. Laws § 36-14-5(d). 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).

In previous advisory opinions, the Commission has advised municipal employees and officials seeking to contract with or provide services to a municipality that they only could do so if the municipality used an open and competitive bidding process. See e.g., A.O. 97-72 (opining that the Charlestown Harbormaster, who also owned and operated a private business that sold and serviced diving equipment, could sell equipment to the Town only if it adhered to an open and public bidding process for such purchases); and A.O. 98-86 (concluding that a Westerly Town Councilor should not enter into lease arrangement unless it was pursuant to an open and public process nor could he submit a bid if he had participated in or otherwise influenced the bid development process). According to the petitioner, a competitive bidding process has been followed here.

Additionally, 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. See A.O. 95-60 (finding Narragansett Town Engineer would violate the Code of Ethics were he to accept a subcontract from Alpine Ski & Sports in the event that said company, also his employer, is awarded a contract from the Narragansett Town Council to provide scuba diving training to the Narragansett Police Department Dive Team given that the petitioner provided input as to the training involved for scuba diver certification).

Here, the proposed contract award does not involve or impact upon the petitioner’s own public body and he has no ability to extend any improper influence or control over the Woonsocket School Department. As a member of the Planning Board, the petitioner has no involvement with the School Department’s development of bid specifications nor does his Board participate in the review or selection of bids received in response to School Department RFP’s. Further, he recused himself from participation in the Planning Board’s discussion and/or vote on the School Administration’s budget requests for 1999-2004, given that he might bid on future proposals.

Since no official action has been or will be taken by the petitioner as a member of the Planning Board, in the absence of any improper intersection between the petitioner’s public responsibilities and his private employment interests, the Code does not preclude him from accepting the contract award. Finally, the prohibitions contained Section 5(e) are inapplicable here given that any actions by the School Department relative to the proposed contract award necessarily would be the responsibility of the School Committee, not the Planning Board. See R.I. Gen. Laws § 36-14-5(e).

Code Citations:

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

Related Advisory Opinions:

99-37
98-123
98-112
98-95
98-86
98-50
97-148
97-136
97-90
97-72
97-66
97-50
97-48
96-41
95-90
95-60
95-41
93-87

Keywords:

Contracts
Private Employment