Advisory Opinion No. 2017-47 Rhode Island Ethics Commission Advisory Opinion No. 2017-47 Approved: October 17, 2017 Re: Sarah Manning QUESTION PRESENTED: The Petitioner, a Dean of Culture and Academics of third and fourth grades at Blackstone Valley Prep Elementary School 2, a municipal employee position, requests an advisory opinion as to whether management procedures put in place are sufficient under the Code of Ethics to insulate the Petitioner from decisions directly affecting her fiancé. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the management procedures put in place with regard to the Petitioner’s fiancé are sufficient under the Code of Ethics to insulate the Petitioner, a Dean of Culture and Academics of third and fourth grades at Blackstone Valley Prep Elementary School 2, a municipal employee position, from decisions directly affecting her fiancé. The Petitioner is a Dean of Culture and Academics of third and fourth grades at Blackstone Valley Prep Elementary School 2 (“School”) in Cumberland whose responsibilities include the evaluation and coaching of the third- and fourth-grade teachers and special educators, except the enrichment teachers such as the art, music and physical education teachers. In August of 2016, Petitioner’s fiancé was hired as a physical education teacher at the School. Aware of the relationship between the Petitioner and her fiancé, the Head of School sought the advice of the School’s Director of Human Capital regarding how to best ensure compliance with School and State ethics guidelines if the Petitioner’s fiancé was to be considered or hired for the position. The Head of School was advised to establish a hiring process and a managerial chain of command that bypasses the Petitioner. The Petitioner states that she did not participate in the hiring and selection process involving her fiancé. She further states that his selection and hiring was conducted by the Head of School and the Dean of Academics of K-2nd grade. Furthermore, the Petitioner represents that the School has established a formal managerial chain of command to ensure that the Petitioner is not involved in any decision-making relative to her fiancé. The Petitioner and the Head of School represent that all personnel matters including managing, coaching and evaluating the Petitioner’s fiancé are performed by the Head of School.[1] In the event that the Head of School is unavailable, the Petitioner’s fiancé reports to two of the other Deans, the Dean of Operations and the Dean of Academics K-2nd grade. Furthermore, when the Head of School is away for a full day or longer, the Chief Schools Officer serves as the Head of School and handles all personnel matter related to the Petitioner’s fiancé. The Petitioner represents that she does not have any responsibilities regarding the School’s finances. Rather, the Head of School manages the School’s budget, spending and finances. Given this set of facts, the Petitioner requests the guidance of the Ethics Commission regarding whether the management procedures put in place with regard to her fiancé are sufficient under the Code of Ethics. 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 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 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” does not include “fiancé” but expressly includes “spouse.” See Commission Regulation 36-14-5004(a)(2). Thus, the Code of Ethics’ Nepotism provisions will be triggered here once the Petitioner’s fiancé becomes her spouse. The Ethics Commission has issued numerous advisory opinions applying the provisions of the Code of Ethics to analogous questions. For example, 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 affected 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); A.O. 96-118 (Secretary of State not prohibited from hiring and employing the mother of his Chief of Staff since petitioner had devised both hiring and supervisory procedures that insulated Chief of Staff from employment decisions that affected his mother); A.O. 96-109 (Cranston Director of Administration could accept appointment to that position where his spouse serves as City’s Purchasing Agent, if he does not participate in day-to-day supervision of his wife and all personnel issues affecting his spouse are handled by the Mayor or an official who does not report to petitioner). Here, the Petitioner represents that she did not participate in the hiring of her fiancé. Furthermore, she states that she does not supervise enrichment teachers such as her fiancé, does not participate in the School’s budget or in matters that would financially impact her fiancé. Accordingly, after considering the Petitioner’s and the Head of School’s representations as to the Petitioner’s non-involvement in any employment and personnel decisions involving the Petitioner’s fiancé, 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 the opinion of the Ethics Commission that the procedures and chain of organizational command detailed by the Petitioner and the Head of School effectively insulate the Petitioner from decisions directly affecting her fiancé. 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. 96-118 A.O. 96-109 Keywords Family: public employment Family: supervision Nepotism