Advisory Opinion No. 2018-56 Rhode Island Ethics Commission Advisory Opinion No. 2018-56 Approved: December 11, 2018 Re: Dennis J. Lopes QUESTION PRESENTED: The Petitioner, a program monitor with the Department of Human Services, Weatherization Assistance Program, a state employee position, requests an advisory opinion regarding whether he may inspect work performed by companies that employ his sons. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a program monitor with the Department of Human Services, Weatherization Assistance Program, a state employee position, may inspect work performed by companies that employ his sons, provided that such work is performed by someone other than his sons and that his sons will not be financially impacted. The Petitioner is a program monitor with the Department of Human Services (“DHS”), Weatherization Assistance Program (“Weatherization Program”). He represents that his duties include reviewing insulation installations and audits performed by private companies, and providing those companies with technical assistance and training. The Petitioner states that one of his sons is an insulation installer for Greenwich Insulation, a private, for-profit contractor that performs work under the Weatherization Program. The Petitioner represents that, thus far, he has not inspected work performed by his son and that the Petitioner neither receives any compensation from Greenwich Insulation nor selects the insulation contractors to perform work under the Weatherization Program. The Petitioner notes that his son is normally assigned to perform work for RISE Engineering[1] rather than the Weatherization Program and that his son is a fill-in for work performed under the Weatherization Program. The Petitioner further explains that his son is not a principal but, rather, is an hourly paid employee of Greenwich Insulation. The Petitioner further represents that his other son is an administrative aid with Tri-County Community Action Agency (“Tri-County”), a private, non-profit organization that performs energy audits on homes. The Petitioner states that his son is paid hourly and that he performs general clerical duties, including sometimes sending emails to the Weatherization Program containing details on audits performed or to be performed. The Petitioner explains that his duties as a program monitor with the Weatherization Program are to review and confirm that the audits performed by Tri-County are completed correctly. The Petitioner states that because his son is an administrative aid and does not perform audits, the Petitioner does not review any of his son’s work. The Petitioner requests the guidance of the Ethics Commission regarding what limitations the Code of Ethics places upon him given his sons’ employment with entities that provide services overseen by the Petitioner and, specifically, whether the Petitioner may oversee work performed by those entities when such work was completed by someone else other than his sons. 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 son. Commission Regulation 36-14-5004(a)(2).[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[3] (“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 Code of Ethics 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. Commission Regulation 36-14-5004(b)(1). As an initial matter, the relationships between the Petitioner and his sons’ employers, standing alone, are too remote to require his recusal from all matters involving their employers. While the Code of Ethics clearly prohibits the Petitioner from participating in DHS matters that directly impact or involve his sons, it does not require the Petitioner to recuse from participating in matters that financially impact his sons’ employers absent a corresponding financial impact to the Petitioner’s sons. For example, in Advisory Opinion 2015-45, the Ethics Commission 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); and 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). In the instant request for an advisory opinion, the Petitioner has not identified a particular decision or matter before the DHS involving his sons’ employers. Rather, the Petitioner requests the Ethics Commission’s general guidance as to the application of the Code of Ethics and, specifically, regarding whether the Petitioner may review work performed by his sons’ employers when such work was completed by someone else other than his sons. Consistent with the above-cited advisory opinions, there is nothing in the facts represented by the Petitioner to indicate that it is reasonably foreseeable that the Petitioner’s involvement in DHS matters involving his sons’ employers will have a financial impact upon his sons. Therefore, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from reviewing work performed by his sons’ employers when such work was completed by someone else other than his sons. However, the Petitioner is advised to remain vigilant in identifying any matters coming before DHS that would have the potential to financially impact his sons, and to be cognizant of any time his sons appear before the DHS as a party or participant, representing themselves or their employers. 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: § 36-14-5(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 Keywords: Family Member Financial Interest [1] The Petitioner explains that RISE Engineering is a private entity that performs home energy assessments and is neither associated with nor performs work under the Weatherization Program. [2] In May 2018, the Ethics Commission codified the Code of Ethics into the Rhode Island Code of Regulations (“RICR”), a uniform state code containing the rules and regulations of the various Rhode Island agencies. In order to do so, the Ethics Commission reformatted and renumbered the Code of Ethics. As a result, Regulation 36-14-5004 now corresponds to Regulation 520-RICR-00-00-1.3.1 Prohibited Activities-Nepotism (36-14-5004). [3] Commission Regulation 36-14-5002 now corresponds to 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002).