Advisory Opinion No. 2017-53 Rhode Island Ethics Commission Advisory Opinion No. 2017-53 Approved: November 28, 2017 Re: Thomas M. Sabbagh, Ph.D. QUESTION PRESENTED: The Petitioner, Dean of Business, Science and Technology at the Community College of Rhode Island, a state employee position, requests an advisory opinion regarding whether he has taken all necessary and appropriate steps as required by the Code of Ethics to insulate himself from decision-making relative to his sister, who was recently hired as a visiting lecturer in one of the departments that he manages. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the proposed alternate supervision plan is sufficient to insulate the Petitioner, Dean of Business, Science and Technology at the Community College of Rhode Island, a state employee position, from conflicts of interest arising out of his sister’s employment as a visiting lecturer in one of the departments that he manages. The Petitioner is the Dean of Business, Science and Technology at the Community College of Rhode Island (“CCRI”), having been appointed to the position in May 2017 after serving in the position on an interim basis since January 1, 2017. The Petitioner states that his duties as Dean include managing eight departments including the Administrative Office Technology Department (“AOTD”). The Petitioner represents that in the summer of 2017, following a retirement within the AOTD, Professor Sarah Cichon, Chair of the AOTD (“Professor Cichon”), requested that a new visiting lecturer position be created for the AOTD during the upcoming fall 2017 semester. With the Petitioner’s support, Professor Cichon’s request was approved by the Petitioner’s direct supervisor, CCRI’s Vice President for Academic Affairs, Dr. Rosemary Costigan (“Dr. Costigan”). The Petitioner states that once the visiting lecturer position was approved, he learned from Professor Cichon that she was considering the Petitioner’s sister, Joyce Perry (“Perry”), for the position. Professor Cichon was familiar with Perry from Perry’s prior work as an adjunct professor in the AOTD and from her prior participation in an advisory group to the AOTD (both of which occurred before the Petitioner’s appointment as Interim Dean). The Petitioner represents that upon learning that Professor Cichon was considering his sister for the visiting lecturer position, he immediately notified Dr. Costigan of his relationship to Perry and stated that he had not and would not take any official action on her behalf relative to the position. The Petitioner states that his sister was, in fact, hired for the visiting lecturer position, which is a temporary position for only the fall 2017 semester, running from September through December 2017. He represents that an alternate supervision plan was implemented to insulate him from participating in any decisions that could impact his sister. Pursuant to this plan, his sister is supervised by Professor Cichon and Dr. Costigan relative to both her current position and any future employment at CCRI beyond the fall semester, while the Petitioner will remain recused from any supervision or decision-making that may impact his sister. The Petitioner states that this is a “workable and feasible” alternate supervision plan, and that it has the support of his supervisor, Dr. Costigan, as well as CCRI’s Administration and its Human Resources Department. The Petitioner seeks the Ethics Commission’s opinion as to whether his continued recusal and the already-implemented supervision plan is sufficient to avoid any prohibited conflicts of interest under the Code of Ethics. The Code of Ethics provides that a public 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 public 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 employee may not use his public position to obtain financial gain, other than that provided by law, for himself or any member of his family. Section 36-14-5(d). Commission Regulation 36-14-5004 (“Regulation 5004”) contains specific regulations aimed at curbing nepotism. Pursuant to Regulation 5004’s general “catch-all” provision, a public employee 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. Regulation 5004(b)(1). More specifically, Regulation 5004 prohibits a public employee from participating in the supervision, evaluation, appointment, classification, promotion, transfer or discipline of any person within his family, or from delegating such tasks to a subordinate, except in accordance with advice received in a formal advisory opinion from the Ethics Commission. Regulation 5004(b)(2)(A) & (B). The phrase “any person within his or her family” expressly includes “sister.” Regulation 5004(a)(2). The Ethics Commission has issued numerous advisory opinions applying the provisions of the Code of Ethics to analogous questions involving family members. For example, in Advisory Opinion 2017-47, the Commission opined that the Dean of Culture and Academics at a charter school could not participate in the hiring or supervision of her fiancé as a teacher at the school, but agreed that the formal managerial chain of command at the school effectively insulated the petitioner from any prohibited decision-making relative to her fiancé’s ongoing employment. Similarly, in Advisory Opinion 2007-7, the City of Newport Police Chief sought to hire seven new patrol officers, including the City Manager’s son. Normally, the City Manager is responsible for signing off on appointments to the Police Department, and serves as the ultimate disciplinary authority for City employees. The Ethics Commission opined the City Manager’s son could be hired by the Police Department provided that the Newport City Solicitor, who was appointed directly by the City Council and was not a subordinate to the City Manager, acted as the appointing authority in place of the City Manager and further provided that the City Manager was completely removed from all personnel decisions or matters that impacted his son. Compare A.O. 2008-55 (married URI faculty members may not participate in a peer evaluation of their spouses, pursuant to Regulation 5004, which prohibits participation in the supervision, evaluation, appointment, classification, promotion, transfer or discipline or a family member). Here, the Petitioner represents that although he supported Professor Cichon’s request for the visiting lecturer position, he was not aware at that time that his sister would be under consideration for the position. He states that he did not take any part in the decision to hire his sister and that, upon learning that his sister was being considered for the position, he immediately notified his supervisor. The Petitioner represents that a workable alternate chain of command has been formally established, insulating him from any decision-making relative to his sister, and that these procedures have been approved by his supervisor as well as CCRI’s Administration and its Human Resources Department. In light of these representations, and consistent with Regulation 5004 and our past advisory opinions, it is the opinion of the Ethics Commission that the procedures and chain of command detailed by the Petitioner effectively insulate the him from decisions directly affecting his sister. 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. 2017-47 A.O. 2008-55 A.O. 2007-7 Keywords Family: public employment Family: supervision Nepotism