Advisory Opinion No. 2019-49

Rhode Island Ethics Commission

Advisory Opinion No. 2019-49

Approved: August 20, 2019

Re:  James W. McElroy

QUESTION PRESENTED:

The Petitioner, a member of the Warwick City Council, a municipal elected position, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places upon him, given that his daughter is one of two candidates nominated by the Mayor for two part-time municipal court positions, the appointments for which require the advice and consent of the City Council. 

RESPONSE:

It is the opinion of the Ethics Commission that the Petitioner, a member of the Warwick City Council, a municipal elected position, is prohibited by the Code of Ethics from participating in the City Council’s advice and consent relative to his daughter’s nomination to the position of municipal court judge, and from discussions and decision-making that would impact his daughter’s finances or terms of employment, such as her re-appointment or compensation. 

The Petitioner is a member of the Warwick City Council (“City Council”) who was elected in November of 2018.  He represents that the Mayor has recently selected and nominated the Petitioner’s daughter for appointment to one of two part-time municipal court judge positions in the City of Warwick (“City”).  The Petitioner explains that, per the City Charter, the selection of a municipal court judge is conducted by the Mayor with the advice and consent of the City Council.  The Petitioner states that he had no role in the selection and/or nomination of his daughter for that position, adding that, thus far, he has recused from the City Council’s discussions and decision-making relative to the advice and consent for his daughter’s nomination, and will continue to recuse from any participation in matters involving her re-appointment and/or any other matter relative to her position as a municipal court judge.  He further states that the confirmation or rejection by the City Council of one nominee would have no effect on the confirmation, rejection or employment of the other nominee.  Lastly, the Petitioner represents that the City Council does not exercise supervisory authority over municipal court judges, but the salaries of municipal judges are included in the City budget reviewed by the City Council.  Based on this set of facts, the Petitioner requests guidance from the Ethics Commission regarding what limitations, if any, the Code of Ethics places upon him in the fulfilment of his public duties. 

Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that 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 exists if an official has reason to believe or expect that he, any person within his family, his business associate or his employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity.  Section 36-14-7(a).  The Code of Ethics also prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any business by which he is employed or which he represents.  Section 36-14-5(d).

Commission Regulation 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004) (“Regulation 1.3.1”) contains specific regulations aimed at curbing nepotism.  Pursuant to Regulation 1.3.1(B)(1), a public official may not participate in any matter as part of his public duties if “any person within his [] 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 his family, nor may he delegate such tasks to a subordinate.  Regulation 1.3.1(B)(2).  The phrase “any person within his [] family” expressly includes “daughter.”  Regulation 1.3.1 (A)(2). 

Furthermore, Regulation 1.3.1(B)(3)(a) prohibits a public official from participating “in discussion or decision-making relative to a budgetary line item that would address or affect the employment, compensation or benefits of any person within his [] family.”  However, Regulation 1.3.1(B)(3)(c) provides that a public official is not prohibited from participating “in discussion or decision-making relative to approving or rejecting the entire budget as a whole, provided that the person within his [] family . . . is impacted by the entire budget as a member of a significant and definable class of persons, and not individually or to any greater extent than any other similarly situated member of the class.”

The Ethics Commission has declined to adopt a blanket or absolute prohibition against one family member serving in or being employed by the same municipality.  Rather, the Ethics Commission has generally taken the position that a public official or employee will satisfy the requirements of the Code of Ethics by recusing from participation in matters directly affecting his or her family member.  Here, while the provisions of the Code of Ethics will not bar the Petitioner and his daughter from serving in the same municipality, the Code of Ethics will regulate and limit the performance of the Petitioner’s official duties relative to the advice and consent necessary for his daughter’s appointment and review of her salary as part of the City budget.  See A.O. 2002-48 (opining that the simultaneous service of family members in the respective positions of Town Councilor and Town Clerk did not, in and of itself, present a conflict of interest for the Town Council, however, the Town Councilor, with whom the Town Clerk had a familial relationship, was required to recuse from the Town Council’s consideration of any personnel matters involving the Town Clerk, including issues of salary, job performance or re-appointment); A.O. 2005-30 (opining that a candidate for appointment to the City of Providence Board of Canvassers could seek and accept such appointment notwithstanding that his spouse was an elected member of the Providence City Council but he was required to recuse from participation in any matters relating to or affecting the candidacy or election of his spouse and/or other candidates running against his spouse). 

The Petitioner represents that, while the advice and consent of the City Council is required for the appointment of municipal court judges, the City Council has no supervisory authority over them.  He further represents that he will recuse from participation in the advice and consent relative to his daughter’s appointment and continue to recuse from her re-appointment, and/or any other matters relative to her position as a municipal court judge, if appointed.  It is the opinion of the Ethics Commission that such recusal is necessary under the above-cited provisions of the Code of Ethics, which require the Petitioner to recuse from participation in discussions and votes that may impact the hiring or employment of his daughter, including her supervision, evaluation, classification, promotion, transfer or discipline.  However, the Petitioner is not required to recuse from the City Council’s advice and consent relative to the nominee proposed for the second part-time municipal court judge position, given that the approval or rejection of that nominee would have no effect on the appointment of the Petitioner’s daughter as they are not competing for the same position, rather the two nominees are being selected to fill the two available positions.  Contra A.O. 2011-42 (opining that a North Providence Town Council member was required to recuse from Council discussions and decision making relative to the Town’s hiring of new firefighters, given that there was a dispute about who to hire and whether to utilize a pre-existing list of persons that included the petitioner’s step-son, who completed the Firefighter Recruit Training Academy in 2007). 

Further, if his daughter is indeed appointed to the position, the Petitioner will be prohibited from participating in discussions and decision-making relative to any budgetary line item that addresses or affects the employment, compensation or benefits of his daughter.  However, the Petitioner may participate in the City Council’s discussions and decision-making as to other budgetary line items and in regard to approving or rejecting the entire budget as a whole. Seee.g., A.O. 2016-30 (opining that a member of the Little Compton Budget Committee could participate in Budget Committee matters pertaining to the Wilbur & McMahon School and School Department budget generally, but was required to recuse from discussion and voting on any budgetary line item regarding School Committee members’ stipends); A.O. 2009-45 (opining that  the Chairman of the Lime Rock Fire District Commission was prohibited from participating in any Board discussion or vote on line items in the Fire District budget that would impact the employment, compensation or benefits of firefighters in the District, given that his son was a firefighter in the District, but was permitted to participate in the discussion and decision-making relative to other budgetary line items and in regard to approving or rejecting the entire budget as a whole).  In all cases of recusal, notice shall 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) 

520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004)



Related Advisory Opinions:

A.O. 2016-30

A.O. 2011-42

A.O. 2009-45

A.O. 2005-30

A.O. 2002-48

Keywords: 

Family: Public Employment

Nepotism