Advisory Opinion No. 2011-32

Re: Steven G. O’Donnell

QUESTION PRESENTED

The Petitioner, the recently appointed Commissioner of the Rhode Island Department of Public Safety and Superintendant of the Rhode Island State Police, a state appointed position, requests an advisory opinion regarding the application of the Code of Ethics' nepotism provisions given that, prior to the start of his tenure in this position, his son had applied to be a Trooper with the Rhode Island State Police and had already received a conditional offer of employment.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics requires the Petitioner, the recently appointed Commissioner of the Rhode Island Department of Public Safety and Superintendant of the Rhode Island State Police, a state appointed position, to recuse from decisions that impact his son's finances or terms of employment with the State Police, such as hiring, performance evaluation, classification, promotion, transfer or

discipline. Upon such recusal, the alternate chain of command proposed by the Petitioner is reasonable and sufficient to insulate the Petitioner from apparent conflicts of interest.

Until recently, the Petitioner served as the United States Marshal for the District of Rhode Island, a Federal position that is not subject to the Rhode Island Code of Ethics. He resigned as U.S. Marshal on May 7, 2011, and on May 10, 2011 was sworn in as Commissioner of the Rhode Island Department of Public Safety and Superintendant of the Rhode Island State Police ("Superintendant"). In his position as Superintendant, the Petitioner serves as the commanding officer and administrative head of the State Police.

The Petitioner represents that in mid-2010, while he was still serving as U.S. Marshal, the State Police held a two-month recruitment for new Troopers. During this open recruitment, the Petitioner's adult son applied to become a Trooper. The Petitioner states that this application process for his son and all other applicants continued through 2010 and into 2011, and involved a written examination, physical agility testing, background investigation and interview. Based on the results of this screening process, on April 15, 2011 a Selection Committee selected thirty (30) recruit candidates and twenty (20) alternate candidates. Successful applicants were then tendered a "conditional offer of employment," subject to the completion of a psychological and medical screening.

The Petitioner's son was among the thirty (30) candidates who were given a conditional offer of employment. The Petitioner states that any successful applicants who do not pass the required medical or psychological screenings will have their conditional offers rescinded. Those who pass are admitted to the State Police Recruit Training Academy, upon ratification of the conditional offer of employment by the Superintendant, who notifies the applicants of their selection through a signed letter.

The Petitioner notes that had no role in the State Police recruitment or selection process involving his son; indeed, he was serving as the U.S. Marshal during that entire time period. He further states that presently, as the new Superintendant, his only role in the selection process will be ministerial, involving the ratification of candidates chosen by the Selection Committee by his signing a letter of acceptance into the Training Academy.

Notwithstanding the Petitioner's lack of influence over the selection of his son as a Trooper, the Petitioner acknowledges that going forward, as commanding officer and administrative head of the State Police, he will sit atop the chain of command for all State Police employees, including his son. Given all of the above facts and representations, and mindful of the nepotism provisions of the Rhode Island Code of Ethics, the Petitioner seeks the Ethics Commission's guidance to avoid any conflicts of interest and to minimize any appearance of impropriety. In particular, the Petitioner asks: (1) whether he is precluded from ratifying his son's conditional offer of employment that was made prior to his taking office; and (2) whether the Petitioner's proposed, alternate chain of command as to his son will sufficiently insulate him from involvement in prohibited employment and personnel decisions.

The Ethics Commission enacted Regulation 36-14-5004, entitled "Nepotism," to address conflicts of interest arising from family relationships. Among the several sections in this regulation is one concerning the supervision of a family member. Subsection (b)(2), entitled "Advocacy/Supervision regarding Family/Household Members," reads:

(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 36-14-5004(b)(2)(A) and (B). This regulation also clarifies that the Petitioner's "son" is a "person within [the Petitioner's] family" for purposes of applying Regulation 36-14-5004. Regulation 36-14-5004(a)(2).

The Petitioner's first question concerns his ability to ratify the Selection Committee's conditional offer of employment to his son. Although Regulation 5004 prohibits the Petitioner from participating in the decision to offer employment to his son, the Petitioner describes the ratification process as ministerial. To the extent that this process merely involves the signing of a letter of acceptance into the Training Academy, and provided that such ratification will occur as to all thirty (30) selected applicants, we concur that such action will not violate the Code of Ethics. However, if the Petitioner is required and authorized to exercise his judgment independent of the Selection Committee to reject any of the thirty (30) applicants based on subjective criteria, such action is not ministerial and the Petitioner must recuse from evaluating his son's admission to the Training Academy. In such case, the Petitioner must follow the alternate chain of command procedures outlined below.

The Petitioner's second question concerns ongoing supervision and/or evaluation of his son through the chain of command. The Petitioner notes that although he is the administrative head and commanding officer of the State Police, the existing command structure places numerous layers of rank between himself and any Trooper so that there is very little opportunity for his direct, day-to-day supervision of such ranks. Between a Trooper and the Petitioner as Colonel, in order of rank, are Corporal, Sergeant, Lieutenant, Captain, Major, and Lieutenant Colonel. Notwithstanding these insulating layers of command, in order to minimize or avoid potential conflicts of interest under Regulation 5004, the Petitioner has indicated that in the event that matters concerning his son reach his level he will recuse from any decision-making that will impact his son's personal finances or terms of employment at the State Police, such as evaluation of performance, classification, promotion, transfer or discipline. In such instance, final decision-making as to these employment matters will be made by the Office of the Governor through the Governor's Deputy Chief of Staff, Jamia McDonald.

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 alternate chain of command structures. For example, in Advisory Opinion 2011-19, the newly appointed Director of the Department of Labor and Training ("DLT") sought guidance as to how to comply with the Code of Ethics given that a member of his family was a long-time employee of the department, serving as its Assistant Director of the Division of Workers' Compensation. In light of the Director's position at the top of the DLT chain of command it was not feasible to prohibit all of the Director's subordinates from participating in matters that involved the Director's family member. Instead, the Commission approved a plan offered by the Director, whereby he would agree to personally recuse from any participation in such matters and any final decision-making would instead be performed by DLT's Deputy Director, who would neither consult with nor accept input from the Petitioner as to such issues. Thereafter, the Deputy Director's decisions relative to the family member's employment would be subject to the support and review of the Department of Administration's ("DOA") Deputy Personnel Administrator for the Division of Human Resources and, if necessary, by the Director of the DOA, neither of whom was under the Petitioner's authority or supervision. See also A.O. 2005-14 (approving alternate chain of command for Director of the Department of Health ("DOH"), in which final DLT decision-making relative to his spouse's company would be performed by the Managing Director of Health and Human Services, another cabinet-level Director who was not subordinate to the petitioner); 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 alternate chain of command).

In even more analogous situations, the Ethics Commission has previously approved alternate chains of command in police and fire departments. In Advisory Opinion 2010-40, the Chief of the Manville Fire Department sought guidance due to the fact that his son was a firefighter in the same department. The Commission approved an alternate chain of command in which the Chief recused on all matters impacting his son's employment, with final decisions instead being made by the Chairman of the Board of Fire Wardens. Noting the difficulty of such recusal in emergency fire situations, the Commission advised that in such emergency situations where incident specific supervision of his son is unavoidable, a violation of the Code of Ethics will not exist. Id. See also A.O. 2007-29 (opining that the son of the Chief of the East Greenwich Police Department could be employed as a community service officer in the Department because the procedures and alternate chain of command fashioned by the Town effectively insulate the Petitioner from decisions directly affecting his son); A.O. 2005-19 (noting that as all employees of a police department are subordinate to the Chief of Police, and because 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, alternate 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). Compare A.O. 2008-54 (opining that the son of the Fire Chief was prohibited from being employed by the Fire District, notwithstanding that the Fire Chief would not take part in the selection process, since no alternate chain of command was proposed to insulate the Fire Chief from apparent conflicts of interest).

The unique circumstances presented by this Petitioner, involving his appointment by the Governor to lead a department that had previously offered to hire his son as a State Trooper, similarly justify our approval of a reasonable and achievable alternate chain of command. Regulation 5004 requires the Petitioner's recusal from decisions that impact his son's personal finances and terms of employment at the State Police, such as hiring, 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 without input from the Petitioner. If such decisions would normally be reviewed by the Superintendant, upon the Petitioner's recusal they may be reviewed and decided by appropriate personnel in the Office of the Governor.

Notwithstanding this recusal and alternate chain of command requirement, the Ethics Commission recognizes that, as Colonel and Superintendant of the State Police, the Petitioner may be involved in emergency police situations in which the incident specific supervision of his son is unavoidable. In such particular circumstances, which we would not expect to occur with great frequency, a violation of the Code of Ethics will not exist.

Code Citations & Other Authority:

R.I. Const. art. IX, sec. 5

R.I. Gen. Laws § 36-14-6

Commission Regulation 36-14-5004

Related Advisory Opinions:

2011-19

2010-40

2010-1

2009-34

2009-26

2008-54

2007-29

2005-19

2005-14

2002-42

2000-16

95-71

95-13

Keywords:

Family: Public Employment

Nepotism