Advisory Opinion No. 2016-10 Rhode Island Ethics Commission Advisory Opinion No. 2016-10 Approved: February 23, 2016 Re: Kathleen Knight-Bianchi QUESTION PRESENTED: The Petitioner, a member of the Scituate Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits her brother from being hired as a per diem senior van driver for the Scituate Department of Senior Services. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner’s brother from being hired as a per diem senior van driver for the Scituate Department of Senior Services, based upon the Petitioner’s representations that she had no involvement in the hiring process, which was conducted entirely by the Scituate Senior Services Director. The Petitioner is a member of the Scituate Town Council (“Town Council”). She represents that the Town of Scituate (“Town”) has had a hiring freeze in place since 2008. She states that the hiring freeze requires the Town’s department heads to seek approval from the Town Council prior to initiating the hiring process for any position. She informs that once the Town Council grants approval to fill a particular position, the entire hiring process is conducted by the department heads without Town Council input, advice or recommendation. The Petitioner represents that on October 1, 2015, the Town’s Senior Services Director, Judith W. Loven, asked the Town Council for permission to hire two per diem van drivers for the Senior Center. She states that, at its October 8, 2015 meeting, the Town Council unanimously voted to authorize Ms. Loven to commence with the hiring process for the per diem van drivers.[1] The Petitioner informs that, once receiving authorization to fill the position, the Town Council had no further involvement in hiring process. She represents that she does not speak frequently with her brother and at no time did she mention this vacancy to him. The Petitioner invited Ethics Commission staff to speak with Ms. Loven regarding the hiring process for the per diem van drivers. Ms. Loven states that after receiving authorization from the Town Council she publicly advertised a vacancy notice for two per diem van drivers for the Senior Center. She represents that after reviewing the applications and conducting interviews, she selected two candidates that she wanted to hire, one of whom was the Petitioner’s brother, Kenneth Knight. Ms. Loven states that, out of an abundance of caution, she contacted the Town Solicitor regarding whether it would be a conflict of interest for the Petitioner if she hired Mr. Knight. She informs that she has hired one van driver so far and intends to hire Mr. Knight as a second per diem van driver provided that such hiring is not prohibited by the Code of Ethics. Ms. Loven represents that as Senior Services Director she reports directly to the Town Council, but the Town Council does not participate in the day-to-day operations of the Senior Center.[2] She informs that the per diem van drivers will be used as back-up drivers, as needed, to take seniors back and forth to the Senior Center. She states that the van drivers are paid an hourly rate and receive no benefits. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that she, any person within her family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). The Code also prohibits a public official from using her public office or confidential information received through her public office to obtain financial gain for herself, her family, her business associate, or any business by which she is employed or which she represents. Section 36-14-5(d). In addition, 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 her public duties if she “has reason to believe or expect that any person within [] her 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). Regulation 5004(b)(2) also prohibits a person subject to the Code of Ethics from participating in the “supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within [] her family,” and from delegating such tasks to a subordinate. The definition of “any person within his or her family” specifically includes “brother.” Regulation 5004(a)(2). The above provisions of the Code of Ethics clearly require a public official to recuse from any involvement in discussions and decision making that may impact the hiring of a family member. For example, in Advisory Opinion 2013-8, the Commission opined that a Bristol Town Council member was 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 was then serving as interim harbormaster and was also one of nineteen applicants for the permanent harbormaster position. See also 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 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. 2006-39 (opining that the son of the Chief of the North Providence Fire Department could apply for a position as a member of the North Providence Fire Department provided that the petitioner did not participate in any aspect of the application process for any candidate prior to his retirement in March of 2007). In the present matter, the Town’s Senior Services Director represents that she will hire the Petitioner’s brother as a per diem van driver for the Senior Center, provided that such employment would not constitute a conflict of interest for the Petitioner. Based upon the representations above, the Petitioner’s participation in the Town Council’s authorization to lift the hiring freeze and permit the Senior Services Director to fill the per diem van driver positions occurred at a time when it was not reasonably foreseeable that her brother would apply for this vacancy. Furthermore, the Petitioner states that she does not speak to her brother often and she did not, at any time, discuss the van driver vacancy with her brother. Finally, the Town Council is not involved in the supervision of the van drivers for the Senior Center, which is overseen by Ms. Loven, the Town’s Senior Services Director. For all of these reasons, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner’s brother from being hired as a per diem senior van driver for the Scituate Department of Senior Services. In the future, assuming that her brother is hired as a per diem van driver for the Senior Center, the Code of Ethics will require the Petitioner to recuse from participating in any matters before the Town Council that directly involve her brother’s employment, compensation or benefits, including budgetary line items relating to Senior Center van drivers. See Regulation 5004(b)(1), (2), & (3) (setting forth Nepotism prohibitions generally, and specifically relating to advocacy/supervision and participation in budgets); A.O. 2014-31 (opining, inter alia, that a member-elect of the Johnston Town Council was prohibited by the Code of Ethics from participating in any Town Council discussions and votes relating to budgetary line items that addressed or affected the employment, compensation or benefits of either of his parents, who were Johnston employees, but he was allowed to participate in the Town Council’s discussion and decision making relative to approving or rejecting the entire municipal budget as a whole). Notice of recusal shall be filed with the Ethics Commission in accordance with § 36-14-6. The Petitioner is encouraged to seek additional advice from the Ethics Commission as more specific questions regarding potential conflicts of interest arise. This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5004 Related Advisory Opinions: A.O. 2014-31 A.O. 2013-8 A.O. 2011-42 A.O. 2006-39 G.C.A. 2009-1 Keywords: Nepotism Family: Public Employment [1] The Minutes of the Town Council’s October 8, 2015 meeting reflect that the Petitioner was present at this meeting and participated in the vote to authorize Ms. Loven to hire two per diem drivers for the Senior Center. [2] The Town of Scituate is governed by the Town Council. Given its small size, Scituate does not employ a Town administrator or manager.