Advisory Opinion No. 2011-42

Re: Kristen Catanzaro

QUESTION PRESENTED

The Petitioner, a member of the North Providence Town Council, a municipal elected position, requests an advisory opinion regarding whether she may participate in Town Council discussions relative to the Town’s anticipated use of a new firefighter recruit list being created as of August 2011 and the Town’s refusal to hire new firefighters from the pre-existing list of persons who had successfully completed the Firefighter Recruit Training Academy in 2007, given that the Petitioner’s step-son is one such 2007 graduate who appears on the pre-existing list.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the North Providence Town Council, a municipal elected position, is required to recuse from Town Council discussions relative to the Town’s anticipated use of a new recruit list being created as of August 2011 and the Town’s refusal to hire new firefighters from the pre-existing list of persons who had successfully completed the Firefighter Recruit Training Academy in 2007, given that the Petitioner’s step-son is one such 2007 graduate who appears on the pre-existing list.

The Petitioner was elected to serve as a member of the North Providence Town Council on September 14, 2007 and presently serves as the President of the Town Council. Prior to her election to the Town Council, the Petitioner’s step-son successfully completed the 2007 Firefighter Recruitment Training Academy but he, along with several other graduates, was not hired as a firefighter for the Town of North Providence. The Petitioner reports that at the Town’s Budget Meeting in April 2011 the Fire Chief informed the Town Council that the list from the 2007 Academy has been voided and that a new recruit list was going to be created as of August 2011. In August 2011, the Town posted an advertisement for candidates to attend the 2011 Firefighter Recruitment Training Academy. Petitioner reports that at the time of the August 2011 posting, the 2007 recruit list had not been exhausted and a total of 8 candidates remained on the 2007 list having not received offers of employment from the Town, and that her step-son is the highest ranked candidate remaining on that list.

Since the posting of an advertisement for candidates in August 2011, the Petitioner reports that she has been approached by taxpayers, parents of recruits and recruits requesting placement on the Town Council’s agenda for discussion of the Town’s present offering of a new Recruit Training Academy and the Town’s refusal to hire from the pre-existing list of remaining graduates of the 2007 Academy. The Petitioner also reports that some of the remaining recruits have engaged attorneys to litigate these matters. The Petitioner seeks guidance as to whether she may participate in any Town Council discussions relative to the Town’s anticipated use of a new recruit list being created as of August 2011 and the Town’s refusal to hire new firefighters from the 2007 list, given that the Petitioner’s step-son is the highest ranked candidate who appears on the pre-existing list.

Pursuant to the Rhode Island Code of Ethics, no person subject to the Code shall have any interest, financial or otherwise, direct or indirect, which is in substantial conflict with the proper discharge of her duties. R.I. Gen Laws § 36-14-5(a). A person subject to the Code has an interest which is in substantial conflict with the proper discharge of her duties if she has reason to believe or expect that she or any person in her family will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Commission Regulations state that a public official has reason to believe or expect a conflict of interest exists where it is reasonably foreseeable and, more specifically, where the probability is greater than “conceivably,” although the conflict need not be certain to occur. Commission Regulation 36-14-7001. Also, no person subject to the Code shall use, in any way, her public office to obtain financial gain, other than that provided by law, for herself or any person within her family. Section 36-14-5(d).

More specifically, the “Nepotism” regulation of the Code requires that no person subject to the Code shall participate in any matter as part of her public duties if there is a reason to believe or expect that any person within her family will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage. Commission Regulation 36-14-5004(b)(1). “Any person within his or her family” includes any person who is related to a public official or public employee, whether by blood, marriage or adoption and expressly includes “step-son.” Commission Regulation 36-14-5004(a)(2).

The above provisions of the Code of Ethics clearly require that a public official recuse from any involvement in discussions that may impact the hiring of a family member. For instance, in 2006 the Commission opined that the Chief of the North Providence Fire Department was prohibited from participation in any aspect of the hiring process involving his son’s application for a position as a member of the North Providence Fire Department. A.O. 2006-39.

The Commission has also opined that recusal was warranted in other matters regarding the employment-related discussions and hiring processes involving family members. See A.O. 2011-32 (opining that the Commissioner of the Rhode Island Department of Public Safety and Superintendant of the Rhode Island State Police was required to recuse from decisions that impacted his son’s finances or terms of employment with the Rhode Island State Police); A.O. 2010-46 (opining that a member of the Chariho Regional School Committee was prohibited from participation in the School Committee’s discussion and vote relative to the implementation of a performance-based compensation plan to replace longevity payments for school and district administrators, given that his first cousin was an administrator in the district).

Similarly, in the instant matter, it is reasonably foreseeable that a member of the Petitioner’s family, her step-son, may derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage as a result of the Petitioner’s participation in Town Council discussions and decision-making relative to the use of the 2007 list. Therefore, it is the opinion of the Ethics Commission that the Petitioner, a member of the North Providence Town Council, is required to recuse from Town Council discussions relative to the Town’s anticipated use of a new recruit list being created as of August 2011 and the Town’s refusal to hire new firefighters from the pre-existing list of persons who had successfully completed the Firefighter Recruit Training Academy in 2007, given that the Petitioner’s step-son is one such 2007 graduate who appears on the list. Finally, upon her recusal the Petitioner is required to file a Statement of Conflict of Interest in accordance with Section 36-14-6.

Code Citations:

36-14-5(a)

36-14-7(a)

36-14-5(d)

36-14-7001

36-14-5004(b)(1)

36-14-5004(a)(2)

36-14-6

Related Advisory Opinions:

2006-39

2010-46

2011-32

2009-34

Keywords:

Nepotism

Family: public employment