Advisory Opinion No. 2012-15 Advisory Opinion No. 2012-15 Re: Michael Fine, M.D. QUESTION PRESENTED: The Petitioner, the Director of the Department of Health, a state appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits his daughter from being hired as an intern in the Division of Infectious Disease and Epidemiology within the Department of Health. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the Petitioner’s daughter from being hired as an intern in the Division of Infectious Disease and Epidemiology within the Department of Health, given that the Petitioner is the Director of the Department of Health. The Petitioner is the Director of the Department of Health (“DOH”), a state agency. As Director of DOH, the Petitioner oversees the entire agency, with more than 400 employees and an operating budget of $110 million. He is also responsible for coordinating a broad range of public health programs and services. The Petitioner represents that DOH has had an internship program for over thirty (30) years to help students and others develop their skills and learn about public health careers. He states that DOH has three types of internships: academic, paid and volunteer. He informs that he has expanded the number of internships available at DOH this summer, his second summer as Director. He represents that he does not take part in the selection, hiring or supervision of interns assigned to the various DOH divisions. He states that applications are directed to particular divisions based upon applicants’ stated interests, with each division reviewing, hiring and directly supervising its own interns. The Petitioner represents that his daughter, who just completed her sophomore year in college, applied to work as a paid intern at DOH in the Division of Infectious Disease and Epidemiology[1] (“IDE”) on April 9, 2012. Upon learning of his daughter’s application, the Petitioner consulted with legal counsel and was advised that his daughter could not be hired as an intern at DOH. Thereafter, the Petitioner requested this advisory opinion seeking advice as to whether his daughter may be hired as an unpaid intern at DOH. Cognizant that he, as Director of DOH, would be his daughter’s ultimate supervisor and that he cannot delegate his role in her supervision to a subordinate, the Petitioner represents that any matters related to his daughter’s performance would be referred to his direct superior, the Secretary of the Executive Office of Health and Human Services (“EOHHS”). The Petitioner directed Commission staff to speak with Donna Constantino, Division Director of IDE, to obtain information specific to IDE’s intern program. Ms. Constantino is responsible for the interviewing, hiring and supervision of IDE interns. Ms. Constantino reports directly to the Petitioner. She informs that IDE seeks to fill three (3) paid and up to five (5) unpaid internships for the summer of 2012. She states that there are currently twenty-seven (27) applicants for paid internships and an unknown number of applicants for unpaid internships. The Petitioner represents that applicants for paid internships, who were not selected for a paid position, may also be considered for unpaid internships. Ms. Constantino informs that paid interns will be given a specific project to work on for the summer while unpaid interns will be assigned more clerical tasks relating to data entry, filing and other IDE needs. With respect to the hiring of paid interns at IDE, Ms. Constantino states that her staff will evaluate the applications and narrow them down to students who are enrolled in a bachelor or master degree program in an area related to public health. Next, she represents that IDE will select approximately three (3) applicants to interview for each paid internship position, typically looking at students in their junior or senior year of college or graduate students. Interviews will be conducted by an IDE human resources staff member and an IDE program member who will be supervising that particular internship assignment. With respect to the hiring of unpaid interns at IDE, Ms. Constantino represents that IDE will first consider applicants who can commit to thirty-five (35) hours per week for at least eight (8) weeks and who are also majoring in a subject area related to public health. Thereafter, if there are any remaining positions to fill, she states that they will then be offered to applicants who can work thirty-five (35) hours per week but are not majoring in an area related to public health. Finally, any remaining positions will be offered to students majoring in an area related to public health and can commit to a minimum of twenty (20) hours per week. She informs that the top applicants for unpaid internships will be interviewed by phone or in person. Commission Regulation 36-14-5004 (“Regulation 5004”), entitled “Nepotism,” prohibits persons subject to the Code of Ethics from participating in any matter as part of his public duties if he “has reason to believe or expect that any person within his [] family, or any household member, is a party to or a participant in such matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage, as the case may be.” Regulation 5004(b)(1). More specifically, subsection (b)(2), entitled "Advocacy/Supervision regarding Family/Household Members," 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. The Petitioner’s daughter is a “person within [the Petitioner’s] family,” for purposes of applying the above nepotism provisions. Regulation 5004(a)(2). In Advisory Opinion 2000-42, the Mayor of North Providence sought advice as to whether his son could participate in a summer youth program in which high school students were hired to assist the town’s departments. The Commission relied on the Mayor’s representations that: 1) all persons who applied were hired into the summer program, and all had been hired since its inception fifteen (15) years prior; 2) all participants received the same stipend and were subject to basically the same work requirements; 3) the program was of a limited duration, running only for the summer months; and, 4) although the Mayor had supervisory and appointment authority over the Department Directors who would be supervising the youths hired into the program, the Mayor did not have an active role in the summer program. Accordingly, the Commission opined that the Code of Ethics did not prohibit the Mayor’s son from applying for or working in the summer program provided that: 1) all applicants were accepted into the program; 2) the Mayor did not supervise or in any way participate in the supervision of youths in the program; and, 3) the Mayor’s son was not afforded any preferential treatment in terms of pay, assignment, or period of employment that was not provided to every other applicant in the program. Similarly, in other advisory opinions, the Commission has permitted family members to be hired where all persons who applied were hired and would be doing substantially similar work, such as providing manual traffic direction and patron assistance at construction sites and civic events, or for officiating games for a youth soccer league. See A.O. 2007-29 (opining that the Code did not prohibit the son of the East Greenwich Chief of Police from being employed as a community service officer because nearly all persons who applied were approved for service; the town’s union contract strictly regulated the assignment of such work, leaving little or no opportunity for discretion; the petitioner would recuse from all matters involving his son; and the Town Manager agreed to replace the petitioner in the chain of command on any issues involving his son); A.O. 2000-81 (opining that the daughter of the Johnston Parks and Recreation Director could apply for and accept part-time employment as an official for the Recreation Department’s youth soccer league, provided that: 1) all applicants were accepted for part-time employment as officials; 2) the petitioner did not supervise or in any way participate in the supervision of his daughter; and 3) the petitioner’s daughter was not afforded any preferential treatment in terms of pay, assignment, or period of employment that is not provided to every other game official). In contrast, in 2008, the Commission declined to approve an advisory opinion that was substantially similar to Advisory Opinion 2000-42, except for a slight, but ultimately significant, factual difference. There, the Chief of Staff for the Mayor of North Providence asked if his granddaughter could work in the same summer youth program described in Advisory Opinion 2000-42. See Commission Minutes July 29, 2008; June 26, 2008 draft advisory opinion for G. Richard Fossa. In particular, the petitioner represented that although it was the goal of the program to accept all applicants, it was possible that some applicants would not be hired that year. Accordingly, the Commission conditionally approved the advisory opinion upon the Petitioner providing a representation from the Personnel Director that everyone who applied was offered a position in the summer youth program. The conditional approval was later revoked after it was determined that not all of the applicants were hired for the summer youth program. See August 7, 2008 Letter to G. Richard Fossa. Notably, the instant matter has two significant factual differences from the factors outlined in Advisory Opinion 2000-42. First, similar to the advisory opinion rejected on July 29, 2008, not all persons who applied will be hired. The DOH’s internship program is a competitive process, with applicants being narrowed down and then interviewed for a limited number of available positions. Additionally, the Petitioner’s subordinates exercise discretion and are able to hire interns to meet each Division’s particular needs. Second, unlike Advisory Opinions 2000-42, 2007-29 and 2000-81, the DOH interns will be assigned various work assignments at the discretion of the Division Chief, depending upon experience and whether they are in a paid or unpaid position. Furthermore, the Petitioner’s direct subordinate, the IDE Division Chief, is responsible for the hiring of IDE interns. As the Commission recognized in General Commission Advisory 2009-1, this fact is concerning because of the “notion that a subordinate will potentially feel pressured to treat their supervisor’s family/household member differently than other employees for fear of employment retribution down the road.” Finally, even though the Petitioner’s daughter would not incur a financial benefit from an unpaid IDE internship, she will gain a future “employment advantage” by being able to include this internship on any future job or graduate school application. Regulation 5004(b)(1). Here, a review Regulation 5004 together with the applicable facts, such as the competitive application process, dissimilar work assignments, insufficient layers of insulation between the Petitioner and his subordinates conducting the hiring process, and the potential for a future employment advantage, lead the Commission to conclude that Regulation 5004 would prohibit the Petitioner’s daughter from being hired as an IDE intern at DOH, irrespective of whether she is paid or unpaid. For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner’s daughter is prohibited by the Code of Ethics from being hired as an intern in the Division of Infectious Disease and Epidemiology within the Department of Health, given that the Petitioner is the Director of the Department of Health. Code Citations: Commission Regulation 36-14-5004 Other Relevant Commission Records: June 26, 2008 draft advisory opinion for G. Richard Fossa. Commission Minutes July 29, 2008 August 7, 2008 Letter to G. Richard Fossa. Related Advisory Opinions: G.C.A. 2009-1 A.O. 2007-29 A.O. 2000-81 A.O. 2000-42 Keywords: Family: Public Employment Nepotism [1] The Division of IDE works to control the spread of infectious diseases by tracking, managing, and containing an ever-growing number of serious illnesses.