Advisory Opinion No. 2013-8 Advisory Opinion No. 2013-8 Re: Nathan T. Calouro QUESTION PRESENTED The Petitioner, a member of the Bristol Town Council, a municipal elected position, seeks an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Town Council’s appointment of a new harbormaster and revision of the harbormaster’s job description, given that his brother is currently serving as interim harbormaster and is also one of nineteen (19) applicants for the permanent harbormaster position. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Bristol Town Council, a municipal elected position, is prohibited by the Code of Ethics from participating in the Town Council’s appointment of a new harbormaster and the Town Council’s review of any amendments to the harbormaster’s job description, given that his brother is currently serving as interim harbormaster and is also one (1) of nineteen (19) applicants for the permanent harbormaster position. The Petitioner is a member of the Bristol Town Council (“Town Council”), having been elected in November 2012. He states that the Town of Bristol (“Town”) advertised a vacancy for the position of harbormaster and has received nineteen (19) applications. He represents that his brother, Matthew Calouro, is one (1) of the nineteen (19) applicants to be considered for the harbormaster position. He states that Matthew has been employed with the Town for more than ten (10) years. He informs that Matthew, who previously served as the assistant harbormaster, is now serving as the interim harbormaster until the position is permanently filled. Pursuant to the Town Charter, the Town Council is charged with the appointment of the harbormaster. The Petitioner states that the Town Council has established a seven (7) person harbormaster search committee to review the applications, interview candidates and send a short list of approximately three (3) candidates to the Town Council for its consideration.[1] The Town Council will vote to hire one of these candidates. He informs that the Town Council also instructed the search committee to recommend revisions to the harbormaster’s job description, salary, work conditions, office structure and the harbor ordinance, which will codify the new terms and conditions of the harbormaster’s employment. He states that the Town Council will vote whether to accept or reject these recommendations. Cognizant of the Code of Ethics’ nepotism provisions, the Petitioner seeks advice as to whether he can participate in the Town Council’s vote on the appointment of the harbormaster and whether he can vote on any proposed amendments to the harbormaster’s job description, salary, work conditions and harbor ordinance. Commission Regulation 36-14-5004 (“Regulation 5004”), entitled “Nepotism,” prohibits a person 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, Regulation 5004(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 brother is a “person within [the Petitioner’s] family” for purposes of applying the above nepotism provisions. Regulation 5004(a)(2). Regulation 5004 clearly requires a public official to recuse from any participation in discussions and votes that may impact the hiring or employment of a family member. See A.O. 2011-42 (opining that a North Providence Town Council member was required to recuse from Council discussions and decision making relative to the Town’s hiring of new firefighters, given that there was a dispute about who to hire and whether to utilize a pre-existing list of persons, that included the petitioner’s step-son, who completed the Firefighter Recruit Training Academy in 2007); A.O. 2007-7 (opining that the Newport City Manager was required to recuse from participating in any way in the appointment of seven (7) individuals who were candidates for employment with the Police Department, given that his son was one (1) of the seven (7) candidates). In the instant matter, Regulation 5004 prohibits the Petitioner from participating in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of his brother, Matthew Calouro. Therefore, the Petitioner is prohibited from evaluating candidates for the harbormaster position and from considering revisions to the harbormaster job description, given that it is reasonably foreseeable that his actions will result in a direct monetary gain, loss or employment advantage for his brother. Accordingly, it is the opinion of the Ethics Commission that the Petitioner is required to recuse from participation in the Town Council’s appointment of a new harbormaster and the Town Council’s review of any amendments to the harbormaster’s job description, given that his brother is currently serving as interim harbormaster and is also one (1) of nineteen (19) applicants for the permanent harbormaster position. Notice of recusal shall be filed in accordance with R.I. Gen. Laws § 36-14-6. Code Citations: Commission Regulation 36-14-5004 § 36-14-6 Related Advisory Opinions: A.O. 2011-42 A.O. 2011-26 A.O. 2007-7 A.O. 2002-48 Keywords: Family: Public Employment Nepotism [1] The Petitioner represents that he did not participate in the creation of the harbormaster search committee, which was created by the prior Town Council.