Advisory Opinion No. 2016-26 Rhode Island Ethics Commission Advisory Opinion No. 2016-26 Approved: August 16, 2016 Re: William C. Perry QUESTION PRESENTED: The Petitioner, a Lieutenant in the East Greenwich Fire Department, a municipal employee position, requests an advisory opinion regarding the application of the Code of Ethics to the Fire Department’s proposed hiring of the Petitioner’s brother as a Probationary Firefighter. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a Lieutenant in the East Greenwich Fire Department, a municipal employee position, from serving in that position upon the hiring of his brother as a Probationary Firefighter in the same Fire Department, provided that certain procedures are followed so that the Petitioner is removed from personnel decisions or other matters that particularly affect his family member. As is explained below, we find that the procedures and alternate chain of command proposed by the Petitioner and the Fire Chief effectively insulate the Petitioner from decisions directly affecting his brother. The Petitioner is a Lieutenant in the East Greenwich Fire Department (“Fire Department”). He represents that the Fire Department is in the process of hiring four Probationary Firefighters and that the Petitioner’s brother, James M. Perry, is a top candidate who is likely to be offered one of the positions. Cognizant of the nepotism provisions of the Code of Ethics, the Petitioner represents that he took no part in the Fire Department’s evaluation or selection of his brother, and he has proposed an alternate chain of command to insulate himself from conflicts of interest that may arise from his brother’s hiring. The Petitioner states that the Fire Department operates under a four platoon system whereby one of the four platoons is always on duty while the other three are off duty, subject to call back or overtime as needs dictate. The lowest ranked personnel within each platoon are Firefighters, followed by Lieutenants. Currently, the Fire Department has two Captains who provide most of the day-to-day supervision over the Firefighters and Lieutenants of the four platoons, including the assignment of non-emergency “house” duties. Captains report to the Deputy Chief and, ultimately, to the Chief of the Fire Department (“the Chief”). The Petitioner and the Chief both note that, while possible, it is very unlikely that the Petitioner’s brother would be assigned to the Petitioner’s platoon based on issues of seniority and because, as a Lieutenant, the Petitioner would technically be in a position of authority over his brother according to the Fire Department’s chain of command. However, regardless of platoon assignments, the Petitioner represents that he will not take part in any decision-making regarding his brother, including supervising, assigning work, promoting, evaluating or disciplining. Instead, such duties would be assigned to another Lieutenant, the Captains, the Deputy Chief or the Chief. Both the Chief and the Town Manager have written to the Ethics Commission to confirm that the Fire Department intends to implement this alternate chain of command to insulate the Petitioner from exercising decision-making that may impact his brother. The Code of Ethics provides that a public official or employee shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction which is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if the official or employee has reason to believe or expect that he or any family member, among others, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Also, a public official or employee may not use his public position to obtain financial gain, other than that provided by law, for himself or any member of his immediate family. Section 36-14-5(d). Commission Regulation 36-14-5004 contains specific regulations aimed at curbing nepotism. Pursuant to Commission Regulation 36-14-5004(b)(1), a public official may not participate in any matter as part of his public duties if “any person within his or her family” is a participant or party, or if there is reason to believe that a family member will be financially impacted or will obtain an employment advantage. Furthermore, a public official may not participate in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within his or her family, nor may he delegate such tasks to a subordinate. Commission Regulation 36-14-5004(b)(2)(A) & (B). The phrase “any person within his or her family” expressly includes “brother.” See Commission Regulation 36-14-5004(a)(2). The Commission has issued numerous advisory opinions, both before and after the enactment of Commission Regulation 5004 in 2007, applying the provisions of the Code of Ethics to analogous questions presented by fire department personnel. In those opinions, the Commission took the position that a public official or employee serving in a supervisory capacity will satisfy the conflict of interest and nepotism provisions of the Code of Ethics by recusing from participation in matters directly affecting his or her family member. In Advisory Opinion 2010-40, the Commission opined that the Chief of the Manville Fire Department, whose son was employed as a firefighter in the department, would not violate the Code of Ethics if he adhered to a proposed alternate chain of command. In particular, the Chief represented that he would recuse from the supervisory chain of command in matters involving his son, and that the Chairman of the Board of Fire Wardens had agreed to become his son’s designated supervisor regarding all administrative matters such as the scheduling of work shifts and disciplinary actions. Similarly, in Advisory Opinion 2009-26, the Commission opined that the Code of Ethics did not prohibit the Deputy Chief of the Valley Falls Fire Department from serving in that position while his nephew simultaneously served as a firefighter within the same department since the recusal procedures and alternate chain of command structure proposed by the Deputy Chief, whereby the Fire Chief replaced him as next in line in the chain of command, and in the Fire Chief’s absence, the Chairman of the Board of Fire Commissioners became the Fire Chief’s designee for purposes of any supervisory action, were reasonable and sufficient to insulate him from apparent conflicts of interest. 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 since 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 (opining that the Code of Ethics would not prohibit the Chief of Cranston Police Department from continuing in that position notwithstanding that his brother served in the department, given that an alternate chain of command had been established wherein the Mayor would replace the Chief as the final decision-maker on matters concerning the Chief’s brother). 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 alternative chain of command was proposed or existed to insulate the Fire Chief from apparent conflicts of interest). Similarly, in the instant matter it is our opinion that the chain of command outlined by the Petitioner and the Fire Chief, which requires the Petitioner to recuse from any decisions that may financially impact his brother (including, but not limited to, supervision, evaluation, work assignment, promotion, transfer and discipline) are reasonable and sufficient to insulate the Petitioner from apparent conflicts of interest. As we have noted in prior advisory opinions, during discrete emergency situations, such as fighting fires where incident-specific supervision of his brother may be unavoidable, the Commission finds that a violation of the Code of Ethics will not exist. The Petitioner is strongly cautioned, however, to remain vigilant in identifying and avoiding additional conflicts of interest that may arise in non-emergency situations. The Petitioner is encouraged to seek further guidance from the Commission as needed. Finally, when recusing, the Petitioner must complete a statement of conflict of interest and comply with the provisions of section 36-14-6. 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: 2010-40 2009-26 2008-54 2007-29 2006-39 2005-19 Keywords: Family: public employment Family: supervision Nepotism