Advisory Opinion No. 2018-18 Rhode Island Ethics Commission Advisory Opinion No. 2018-18 Approved: March 15, 2018 Re: Dennis Finlay QUESTION PRESENTED: The Petitioner, the former Town Manager for the Town of Smithfield, a municipal appointed official, requests an advisory opinion regarding whether the Code of Ethics permits him to accept a temporary, part-time consulting position, acting as the interim Finance Director of the Cumberland Fire District, given that his brother is the Chief of the Fire District. RESPONSE: The Petitioner, the former Town Manager for the Town of Smithfield, a municipal appointed official, is not prohibited by the Code of Ethics from accepting a temporary, part-time consulting position, acting as the interim Finance Director of the Cumberland Fire District, notwithstanding that his brother is the Chief of the Fire District. The Petitioner is the former Town Manager of the Town of Smithfield. He explains that on January 31, 2018, the Finance Director of the Cumberland Fire District (“Fire District”) retired and the Fire District has been searching to hire a permanent replacement. The Petitioner explains that as the Fire District has been unable to find a suitable candidate, and because of his prior experience and expertise in the municipal finance field,[1] he was asked to temporary serve as a part-time consultant acting as an interim Finance Director for the Fire District. Cognizant of the nepotism provisions of the Code of Ethics, the Petitioner asks whether he can accept the position given that his brother is the Chief of the Fire District (“Fire Chief”). The Petitioner states that as a consultant he will be appointed by the Cumberland Fire Committee (“Fire Committee”) which manages the Fire District and appoints the Finance Director and the Fire Chief. The Petitioner further represents that the position will require him to work 15 to 20 hours per month and his duties will include the preparation of the Fire District’s annual budget, monthly reconciliation/adjusting entries, monthly and quarterly finance reports and communication with relevant state agencies. The Petitioner states that the position does not include supervision, evaluation, appointment, classification, promotion, transfer or discipline of his brother, or vice versa. The Petitioner also explains that he will be directly reporting to the Fire Committee. 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 family. Section 36-14-5(d). Most pertinent to this Petitioner’s set of facts is Commission Regulation 36-14-5004, regarding 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 a family member is a participant or party to the matter, 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 a family member, nor may he delegate such tasks to a subordinate. Commission Regulation 36-14-5004(b)(2)(A) & (B). This regulation also clarifies that the Petitioner’s “brother” is a “person within [the Petitioner’s] family” for purposes of applying Regulation 36-14-5004. Finally, subsection (b)(4) of Regulation 5004 prohibits a public official from participating in negotiations relative to an employee contract or collective bargaining which addresses or affects the employment, compensation or benefits of any person within the official’s family. In the past, the Commission has approved alternate chains of command in which the supervising family member was sufficiently insulated from all actions involving the supervision, discipline and evaluation of his/her subordinate family member. 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. 2009-34 (opining that the Chief of the West Warwick Fire Department was not prohibited from serving in that position if his son-in-law was a successful candidate for a firefighter position within the same department, provided that certain procedures are followed so that the petitioner was removed from personnel decisions or other matters that particularly affect his family member, given that the alternate chain of command proposed by the petitioner effectively insulates him from decisions directly affecting his son-in-law). But see A.O. 2008-54 (opining that the Code of Ethics prohibits the son of the Saylesville Fire Chief from being employed as a firefighter in the Fire District, notwithstanding that the Fire Chief will not take part in the selection process, since no alternate chain of command existed to insulate the Fire Chief from apparent conflicts of interest). In this set of facts, however, it is not necessary to create an alternate chain of command, given that the Petitioner is neither supervised by, nor reports to, the Fire Chief. Both the Finance Director and the Fire Chief are supervised by the Fire Committee. Furthermore, the Petitioner does not participate in the evaluation, appointment, classification, promotion, transfer or discipline of his brother, or vice versa. The Petitioner also does not participate in negotiations relative to his brother’s employment contract as his contract has been previously negotiated by the Fire Committee and is in effect until June 30, 2019. Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from being appointed as a part-time consultant to act in the capacity as a finance director, notwithstanding the fact that his brother serves as the Fire Chief. 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. 2009-34 A.O. 2008-54 Keywords: Nepotism