Advisory Opinion No. 2017-42 Rhode Island Ethics Commission Advisory Opinion No. 2017-42 Approved: September 12, 2017 Re: Kevin M. Lynch QUESTION PRESENTED: The Petitioner, a Deputy Administrator for the Rhode Island Division of Public Utilities and Carriers, a state employee position, requests an advisory opinion regarding the application of the Code of Ethics to his public employment, given that his son has been hired as an employee of Narragansett Electric Company, an entity that is regulated by the Petitioner’s agency. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Deputy Administrator for the Rhode Island Division of Public Utilities and Carriers, a state employee position, is required by the Code of Ethics to recuse from participating in any matters at his agency that would financially impact his son, and from any matters at his agency for which his son appears or presents evidence or arguments. The Petitioner has been employed by the Rhode Island Division of Public Utilities and Carriers (“Division”) since 2009, and currently serves as a Deputy Administrator. The Petitioner states that the Division is statutorily authorized to supervise and regulate the operations of public utilities doing business in the state. One such public utility that is supervised and regulated by the Division is Narragansett Electric Company (“NEC”), a subsidiary of National Grid USA which offers retail electric and gas service in Rhode Island. The Petitioner states that his son recently graduated from college and, following a competitive application process, was offered an entry-level position at NEC as a Meter Technician. He is scheduled to begin work in September 2017. Given that his son will begin employment with an entity that is heavily regulated by the Petitioner’s agency, the Petitioner seeks guidance from the Ethics Commission as to any professional limitations placed on him as a Deputy Administrator of the Division. Under the Code of Ethics, a public official or employee may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if he has reason to believe or expect that he, any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity or employment. Section 36-14- 7(a). A “person within his . . . family” includes the official or employee’s child. Section 36-14-2(1); Commission Regulation 36-14-5004(a)(2). The public official or employee is further prohibited from using his public office or position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate or a family member. See section 36-14-5(d). Additionally, Commission Regulation 36-14-5002 (“Regulation 5002”) requires a public official or employee to recuse himself from participation when any person within his family appears or presents evidence or arguments before his state or municipal agency. Regulation 5002(a)(1). Furthermore, the “Nepotism” regulation of the Code of Ethics, Commission Regulation 36-14-5004 (“Regulation 5004”), prohibits a public official or employee 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 is a party to or a participant in the same matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage. Regulation 5004(b)(1). As an initial matter, the relationship between the Petitioner and his son’s new employer, standing alone, is too remote to require his recusal from matters involving NEC. It is the Petitioner’s son, rather than the Petitioner himself, who is an employee of NEC. While the Code of Ethics clearly prohibits the Petitioner from participating in Division matters that directly impact or involve his son, it does not require the Petitioner to recuse from participating in matters that financially impact his son’s employer, NEC, but do not “trickle down” to financially impact the Petitioner’s son in his position as a Meter Technician. For example, in Advisory Opinion 2015-45, we advised the Deputy Chief of Legal Services for the Public Utilities Commission that she was not required to recuse from a matter in which National Grid was represented by a law firm that employed her husband as an associate attorney, based on the Petitioner’s representations that her husband was not assigned to work on the matter nor appear before the PUC, and he would not be financially impacted by the PUC’s decision as to National Grid. See also A.O. 2008-69 (opining that a member of the Woonsocket Zoning Board of Review was permitted to participate in discussions and voting on a petition for a variance brought by CVS, notwithstanding the fact that the petitioner’s sister was employed as an accounting analyst with CVS, since his sister would not be financially impacted by the Zoning Board of Review’s decision regarding the petition); A.O. 2008-60 (advising that a member of the Woonsocket Zoning Board of Review could participate in discussion and voting on a petition for a variance brought by CVS, notwithstanding the fact that the petitioner’s son and nephew were employed in the shipping department of CVS); A.O. 2007-16 (opining that a member of the Johnston School Committee could participate in the Committee’s review of bills submitted by The Providence Center, a provider of special education services that employed the petitioner’s mother as an office assistant); and A.O. 99-28 (concluding that a Westerly Zoning Board of Review member could participate in the review of Bess Eaton Donut’s application to construct a drive-through window, notwithstanding his spouse’s employment in Bess Eaton’s bakery department, since his spouse would not be impacted by the Zoning Board’s decision). In the instant request for an advisory opinion, the Petitioner has not identified a particular decision or matter before the Division involving NEC, and so the Ethics Commission is unable to give specific guidance as to whether recusal is required in a given matter. Instead, consistent with the above provisions of the Code of Ethics and past advisory opinions, we simply caution the Petitioner to consider whether any matter before the Division has the potential to financially impact his son as an NEC employee, and to be cognizant of any time his son appears before the Division as a party or participant, representing himself, his employer or any other interest. In all such cases, the Petitioner should either recuse from participation or seek additional guidance from the Ethics Commission. Notices of recusal must be filed with the Ethics Commission in accordance with 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: § 36-14-2(1) § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5002 Commission Regulation 36-14-5004 Related Advisory Opinions: A.O. 2015-45 A.O. 2008-69 A.O. 2008-60 A.O. 2007-16 A.O. 99-28 Keywords: Family: Private Employment Family: Public Employment Nepotism