Advisory Opinion No. 2011-24

Re: The Honorable Donald R. Grebien

QUESTION PRESENTED

The Petitioner, the Mayor of the City of Pawtucket, a municipal elected position, requests an advisory opinion regarding what appropriate measures he must take in order to avoid conflicts of interest arising from the fact that his uncle-in-law is a City employee, currently serving as Fiscal Director of the Department of Planning and Redevelopment.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics requires the Petitioner’s recusal from decisions that impact his family member’s personal finances or continued employment for the City of Pawtucket, such as performance, evaluation, classification, promotion, transfer or discipline. Upon such recusal, the Petitioner’s proposed alternative chain of command as to his family member is reasonable and sufficient to insulate the Petitioner from apparent conflicts of interest.

The Petitioner was sworn in as Mayor of the City of Pawtucket (“City”) on January 3, 2011. He seeks guidance from the Ethics Commission regarding what appropriate measures he must take in order to avoid conflicts of interest arising from the fact that his wife’s uncle, Richard Lavallee, is a City employee, currently serving as Fiscal Director of the Department of Planning and Redevelopment (“Planning Department”). He advises that the Fiscal Director is a paid position and part of the Professional and Technical Employees Union, Local 3960. He informs that Mr. Lavallee was hired as Fiscal Director on January 4, 2010, a time when the Petitioner was not an elected official of the City. He further informs that he had no role or input, directly or indirectly, in the hiring of Mr. Lavallee to this position.

Although the Petitioner acknowledges that the Mayor’s office is responsible for overseeing all City departments, including the Planning Department, he maintains that the Mayor’s office has very little, if any, direct contact or communication with the Planning Department’s Fiscal Director, Mr. Lavallee. The Petitioner advises that pursuant to the organizational structure of the Planning Department, there are two levels of separation between the Mayor and Mr. Lavallee. The Petitioner informs that Mr. Lavallee’s immediate supervisor is the Assistant Planning Director, who, in turn, reports to the Director of the Planning Department (“Planning Director”). Cognizant of the nepotism provisions of the Code of Ethics, the Petitioner seeks guidance from the Ethics Commission as to how to appropriately avoid or minimize any conflicts of interest in the performance of his public duties as Mayor.

The Ethics Commission enacted Commission Regulation 36-14-5004 (“Regulation 5004”), entitled “Nepotism,” to address conflicts of interest arising from family relationships. Among the several sections in this regulation is subsection (b)(2), entitled “Advocacy/Supervision regarding Family/Household Members,” which provides:

(A) No person subject to the Code of Ethics shall participate in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within his or her family or a household member, in the state or municipal agency in which the official or employee is serving or over which he or she exercises fiscal or jurisdictional control, except in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion.

(B) No person subject to the Code of Ethics shall delegate to a subordinate any tasks relating to the supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within his or her family or household members, except in accordance with particular instructions and advice received from the Ethics Commission in a written advisory opinion.

Regulation 5004 (b)(2)(A) and (B). The Petitioner’s wife’s uncle, his “uncle-in-law,” is a “person within [the Petitioner’s] family,” for purposes of applying the above nepotism provisions. Regulation 5004(a)(2).

In order to minimize or avoid potential conflicts of interest under Regulation 5004, the Petitioner has proposed recusing himself from any decision-making relating to the employment of Mr. Lavallee. Although the chain of command generally insulates the Petitioner from the daily supervision of Mr. Lavallee, the Petitioner represents that any necessary involvement between the Planning Department and the Mayor’s Office regarding Mr. Lavallee would be addressed to the City’s Director of Administration. The Petitioner further proposes that any issues regarding the supervision, evaluation, appointment, classification, promotion, transfer or discipline of Mr. Lavallee, that rise to the top of the chain of command, would also be carried out by the City’s Director of Administration, who would neither consult with nor accept input from the Petitioner as to such issues. Additionally, the Petitioner represents that if he ever finds himself in a situation where he is required to become involved in personnel issues that would have a financial impact on Mr. Lavallee, he would seek further advice from the Ethics Commission to avoid any appearance of impropriety.

The Ethics Commission has acknowledged that in circumstances in which a public official sits atop a chain of command, a complete and effective recusal can be difficult or impossible to achieve, given that upon the official’s recusal the matter must still be carried out by one of the official’s subordinates. In such cases, so that the necessary work of a public agency can continue, the Commission has approved alternative chain of command structures.

Recently, in Advisory Opinion 2011-19, the Commission approved an alternate chain of command for the Director of the Department of Labor and Training (“DLT”), who sought guidance from the Commission as to how to avoid conflicts of interest given the fact that his first-cousin’s husband is a long-time employee of the DLT, currently serving as its Assistant Director of the Division of Workers’ Compensation. There, the petitioner explained that Assistant Directors report to the Deputy Director, who, in turn, reports to the petitioner. A.O. 2011-19. In that matter, the fact that the petitioner’s cousin-in-law had been employed by DLT for years prior to the petitioner’s appointment as Director compelled the approval of a feasible alternate chain of command where the petitioner was required to recuse from any decision-making relative to the employment of his family member; upon recusal, such matters would handled by the DLT’s Deputy Director, and if necessary by appropriate personnel administrators within the Department of Administration. Id. See also A.O. 2010-1 (recognizing that it was not feasible to require that all of the General Treasurer’s subordinates recuse from decisions impacting the Treasurer’s family members, the Ethics Commission approved a procedure in which the Treasurer recused from the decision-making in favor of an alternative chain of command); A.O. 2005-19 (noting that as all employees of a police department are subordinate to the Chief of Police, and since it is not feasible to require the entire department to recuse on matters impacting the Chief’s brother, a lieutenant in the department, the Commission found that a proposed, alternative chain-of-command, in which ultimate decision-making as to the Chief’s brother would be performed by the Mayor, was reasonable and sufficient to insulate the Chief from apparent conflicts of interest); A.O. 2005-14 (acknowledging that it was not feasible to prohibit all of the Director of the Rhode Island Department of Health’s (“DOH”) subordinates from participating in matters that involved the Director’s spouse, who is a physician and also a key employee of a private company that had pre-existing contracts with the DOH, therefore, the Commission approved a plan where the Director would recuse from any participation in such matters and any final decision-making would instead be performed by the Managing Director of Health and Human Services, another cabinet-level Director who was not subordinate to the petitioner); A.O. 2000-16 (opining that the Director of Rhode Island Housing (“RIH”) must recuse on decisions impacting his spouse, who is the Executive Director of a not-for-profit agency that receives funding from RIH, but it is not feasible or required that all other RIH employees also recuse, as long as final decision-making is made by a member of the RIH Board of Directors).

In the present matter, unlike the prior, related advisory opinions in which the department heads were able to defer their ultimate decision-making authority to a supervisory board, appointing authority, or other cabinet level official, there is no such supervisory authority over an elected Mayor of a city or town in Rhode Island. This is also not a case where a petitioner seeks to hire his family member. Rather, and most significantly, this Petitioner seeks guidance on how to avoid conflicts of interest with his uncle-in-law, Mr. Lavallee, whose City employment predates the Petitioner’s election as Mayor, and where the Petitioner took no part in hiring Mr. Lavallee for his current position. Additionally, the Petitioner is sufficiently insulated from Mr. Lavallee by the organizational structure of the Planning Department, whereby Mr. Lavallee has two superiors in between him and the Petitioner. Based upon the above representations and consistent with past advisory opinions, it is the opinion of the Ethics Commission that the Petitioner’s proposed recusal and alternate chain of command, where the City’s Director of Administration would replace the Petitioner atop the chain of command with respect to any issues regarding Mr. Lavallee’s employment, without any input from the Petitioner, is feasible and in these unique circumstances reasonable and sufficient to insulate the Petitioner from apparent conflicts of interest.

Pursuant to regulation 5004, the Petitioner is required to recuse from decisions that impact Mr. Lavallee’s personal finances and continued terms of employment with the City, such as evaluation of performance, classification, promotion, transfer or discipline. Notice of recusal must be filed with the Ethics Commission pursuant to section 36-14-6. Upon recusal, these matters must be handled by the City’s Director of Administration, without input from the Petitioner.

Code Citations:

Commission Regulation § 36-14-5004

Related Advisory Opinions:

A.O. 2011-19

A.O. 2010-1

A.O. 2005-19

A.O. 2005-14

A.O. 2000-16

Keywords:

Family: Public Employment

Nepotism