Advisory Opinion No. 2018-21 Rhode Island Ethics Commission Advisory Opinion No. 2018-21 Approved: March 27, 2018 Re: Matthew Alves QUESTION PRESENTED: The Petitioner, a Detective Sergeant with the Cumberland Police Department, Detective Division, a municipal employee position, requests an advisory opinion regarding whether the established alternate supervisory chain of command is sufficient to insulate him from conflicts of interest arising out of his new position, given that his spouse is a detective in the Detective Division. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the established alternate supervisory chain of command is sufficient to insulate the Petitioner, a Detective Sergeant with the Cumberland Police Department, Detective Division, a municipal employee position, from conflicts of interest arising out of his new position, notwithstanding that his spouse is a detective in the Detective Division. The Petitioner is a Sergeant within the Cumberland Police Department (“Police Department”) who was recently assigned to its Detective Division (“Division”). The Petitioner explains that, prior to his assignment, the Division consisted of two full-time detectives, one of whom is the Petitioner’s spouse, one rotating detective and a Captain. The Petitioner states that, prior to his assignment to the Division, all detectives were supervised by and reported directly to the Captain, who reported to the Deputy Chief, who in turn reported to the Chief of the Police Department (“Chief”). The Petitioner represents that, given his rank of Sergeant, his duties within the Division include the investigation and prosecution of cases as well as the supervision of the detectives within the Division, thus, placing his spouse in a position subordinate to his. Cognizant of the nepotism provisions of the Code of Ethics, prior to assigning the Petitioner to the Division, the Chief issued a Special Order establishing an alternate chain of command within the Division. According to the alternate chain of command, the Petitioner’s spouse continues to report directly to and be supervised by the Captain. In the Captain’s absence such supervision would be exercised by the Deputy Chief and, if the Deputy Chief is unavailable, by the Chief. Given this set of facts, the Petitioner asks whether the alternate supervisory chain of command established by the Chief is sufficient to insulate the Petitioner from conflicts of interest arising out of his position, given that his spouse is one of the detectives in the Division. 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 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). Commission Regulation 36-14-5004 (“Regulation 5004”) contains specific provisions 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 “spouse.” Regulation 36-14-5004(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 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. Similarly, in Advisory Opinion 2009-26, the Commission opined 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. The Commission determined that the recusal procedures and alternate chain of command structure proposed by the Deputy Chief, whereby the Fire Chief replaced him as next in line in the chain of command, and in the Fire Chief’s absence, the Chairman of the Board of Fire Commissioners became the Fire Chief’s designee for purposes of any supervisory action, were reasonable and sufficient to insulate him from apparent conflicts of interest. See also A.O. 2010-40 (opining that the Chief of the Manville Fire Department, whose son was employed as a firefighter in the department, would not violate the Code of Ethics as an alternate chain of command was established where the Chief recused from the supervisory chain of command in matters involving his son, and that the Chairman of the Board of Fire Wardens had agreed to become his son’s designated supervisor regarding all administrative matters such as the scheduling of work shifts and disciplinary actions); A.O. 2005-19 (opining that the Code of Ethics would not prohibit the Chief of the Cranston Police Department from continuing in that position notwithstanding that his brother served in the department, given that an alternate chain of command had been established wherein the Mayor would replace the Chief as the final decision-maker on matters concerning the Chief’s brother). Contra 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). After considering the Petitioner’s representations and the alternate chain of command implemented by the Chief, and considering our past advisory opinions and the provisions of the Code of Ethics including Regulation 5004, it is the opinion of the Ethics Commission that the alternate chain of command outlined by the Petitioner and discussed above is reasonable and sufficient to insulate him from apparent conflicts of interest. The Petitioner is strongly cautioned, however, to remain vigilant in identifying and avoiding additional conflicts of interest that may arise given his position of authority over his spouse. Regulation 5004 requires the Petitioner’s recusal from decisions that impact his spouse’s personal finances and continued terms of employment, such as evaluation of performance, classification, promotion, transfer or discipline. The Petitioner is encouraged to seek further guidance from the Commission as needed. When recusing, the Petitioner must complete a statement of conflict of interest and comply with the provisions of 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: § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5004 Related Advisory Opinions: A.O. 2016-26 A.O. 2010-40 A.O. 2009-26 A.O. 2008-54 A.O. 2007-29 A.O. 2005-19 Keywords: Nepotism Family: public employment Family: supervision