Advisory Opinion No. 2016-31 Rhode Island Ethics Commission Advisory Opinion No. 2016-31 Approved: September 13, 2016 Re: Dr. Sally Mitchell QUESTION PRESENTED : The Petitioner, the Director of Special Services for the Johnston Public Schools, a municipal employee position , requests an advisory opinion regarding the application of the C ode of Ethics to the proposed hiring of the Petitioner’s daughter as a special education teacher at the Brown Avenue School in Johnston . RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, the Director of Special Services for the Johnston Public Schools, a municipal employee position, from serving in that position upon the hiring of her daughter as a special education teacher at the Brown Avenue School in Johnston, provided that the Petitioner has no role in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of her daughter. As is explained below, we find that the procedures and chain of organizational command detailed and proposed by the Petitioner and the Superintendent of the Johnston Public Schools effectively insulate the Petitioner from decisions directly affecting her daughter. The Petitioner is the Director of Special Services ( “Director” or “ Petitioner ” ) for the Johnston Public Schools , working as an administrator at the school district’s central office. The Petitioner represents that she, along with an Assistant Director of Special Services, is responsible for ensuring that the Johnston Public Schools are in conformance with district, state, and federal guidelines for special services and education. The Petitioner works closely with, and has some direct supervision over, school psychologists, social workers and student support coordinators who work in the schools. However, the Petitioner notes that she has no role in the supervision, evaluation, promotion, transfer or discipline of teachers, including special education teachers. She states that such supervision and evaluation of both special education and general education teachers is conducted solely by the school principals under guidelines established by the Rhode Island Department of Education. Decisions by the principals are reviewed, in turn, by the Superintendent. The Petitioner further represents that her interaction with the special education teachers is more systemic than supervisory in nature. For example, from time to time she may coordinate or present professional development training s to special education teachers. Occasionally, the Petitioner or the Assistant Director for Special Services may sit in on a complicated Individual Education Plan (“IEP”) meeting to help ensure that the plan conforms to relevant laws and guidelines. [1] The Petitioner states that she may also approve a special education teacher’s minor budgetary request s for classroom materials t o assist the learning process. The Petitioner states that o n August 9, 2016, the Johnston School Committee (“School Committee”) voted to offer the Petitioner’s daughter, Christina Mitchell ( “ Christina ” ), a position as a special education teacher in a life skills classroom at Brown Avenue School in Johnston . The position became available after the previous special education teacher accepted a general education position. The teaching opportunity was advertised on the SchoolSpring.com, a website utilized by many school districts to announce educational job listings nationwide. The Petitioner represents that she did not participate in any way in the hiring process for the position. Christina attended an interview conducted by the Principal of Brown Avenue School (“Principal”) and the Assistant Director of Special Services, who made recommendations to the Superintendent . In turn , the Superintendent forwarded his recommendation to the School Committee, who voted to offer the position to Christina . Aware of the Code of Ethics ’ application to issues of nepotism, and hoping to avoid any appearance of impropriety, the Petitioner and the Superintendent coordinated the instant request for an advisory opinion. Although the Petitioner’s existing duties and responsibilities do not include direct supervision or evaluation of her daughter or any other teacher, the Superintendent has proposed a formal plan to ensure that the Petitioner is not involved in any decision-making relative to Christina . In a memorandum dated August 11, 2016, the Superintendent implemented an “alternate supervisory plan” for Christina clarifying that in all employment and personnel matters she will report directly to the Principal of the Brown Avenue School and that any further review beyond the Principal will be taken by the Superintendent. The memorandum goes on to state that neither Christina nor her supervisory Principal shall directly or indirectly communicate with the Petitioner regarding any matters relating to Christina’s employment. In follow up communications with the Commission staff, the Petitioner has further represented that, to avoid even the appearance of impropriety, she will not attend any of the IEP meetings involving Christina ’s students. Generally, 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 her 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 she or any family member, among others, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Also, a public official or employee may not use her public position to obtain financial gain, other than that provided by law, for herself or any member of her family. Section 36-14-5(d). Commission Regulation 3614-5004 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 her 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 her family, nor may she 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 “ daughter .” See Commission Regulation 36-14-5004(a)(2). The Commission has issued numerous advisory opinions applying the provisions of the Code of Ethics to analogous questions. Most recently, in Advisory Opinion 2016-26, the Commission opined that the Code of Ethics did not prohibit a Lieutenant in the East Greenwich Fire Department from serving in that position upon the hiring of his brother as a Probationary Firefighter in the same Fire Department, provided that certain procedures were followed so that the Lieutenant was removed from personnel decisions or other matters that particularly affect d his family member. See also A. O. 2009-26 (opining 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 Department were reasonable and sufficient to insulate the Deputy Chief from apparent conflicts of interest) . Under somewhat similar circumstances, in Advisory Opinion 2002-43 , the Ethics Commission opined that the daughter of the Newport Schools Superintendent could accept employment by the Newport Public Schools as a teacher at the Thompson Middle School provided that the Superintendent did not take action on personnel matters or matters that affected her daughter financially. 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). Here, the Petitioner does not supervise or evaluate special education teachers such as her daughter. The Petitioner also has no supervision over school principals, who are the special education teachers’ primary and direct supervisors. Accordingly, after considering the Petitioner’s and the Superintendent’s representations as to the Petitioner’s non-involvement in any employment and personnel decisions involving the Petitioner’s daughter, as well as our review of past advisory opinions and the provisions of the Code of Ethics , including Commission Regulation 36-14-5004, it is our opinion that the procedures and chain of organizational command detailed by the Petitioner and the Superintendent of the Johnston Public Schools effectively insulate the Petitioner from decisions directly affecting her daughter. Therefore, and in light of all of the representations made herein, the Code of Ethics does not prohibit the Petitioner from continuing to serve as Director of Special Services upon the hiring of her daughter as a special education teacher at the Brown Avenue School. 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) § 36-14-7(a) Commission Regulation 36-14-5004 Related Advisory Opinions : A.O. 2016-26 A.O. 2009-26 A.O. 2008-54 A.O. 2007-29 A.O. 2002-43 Keywords : Family: public employment Family: supervision Nepotism