Advisory Opinion No. 2020-23 Rhode Island Ethics Commission Advisory Opinion No. 2020-23 Approved: April 28, 2020 Re: Richard Peck QUESTION PRESENTED: The Petitioner, the Acting Chief of the Pascoag Fire Department, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from signing “pay-on-call” sheets completed by either or both of his sons who are volunteer firefighters for the Pascoag Fire Department, following a response by either or both sons to an emergency call, in situations where the Petitioner is the only senior officer at the scene available to sign such sheets. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Acting Chief of the Pascoag Fire Department, a municipal appointed position, is not prohibited by the Code of Ethics from signing “pay-on-call” sheets completed by either or both of his sons who are volunteer firefighters for the Pascoag Fire Department, following the response by either or both sons to an emergency call, in situations where the Petitioner is the only senior officer at the scene available to sign such sheets. The Petitioner is the Acting Chief of the Pascoag Fire Department (“Fire Department”).[1] He represents that he has been a member of the Fire Department since 1996, and that his two sons are volunteer firefighters in the same department. The Petitioner explains that there are two duty crews that respond to emergency calls on a daily basis. He further explains that, if both crews are out responding to an emergency and another emergency call comes in, or if the crews need additional support, the Fire Department will page all firefighters and Emergency Medical Technicians (“EMTs”) asking for additional assistance. The Petitioner states that, if more than the needed firefighters or EMTs respond to the emergency, the firefighters themselves will decide who will stay, based on either the type of emergency or, at times, seniority. He notes that there has never been a need for him to determine who from the additional firefighters or EMTs will stay on the scene to assist in an emergency after responding to a page. An additional firefighter or EMT will typically be paid between $20 to $30 per emergency call. The Petitioner represents that, in order to be paid, the firefighter or EMT must complete “pay-on-call” sheet which includes information regarding the date and time of the response, the truck on which the firefighter or EMT was riding, his or her position and the firefighter or EMT’s signature. The Petitioner states that the “pay-on-call” sheet must then be signed by the senior officer who was at the scene with the firefighter or EMT in question, adding that he is often that senior officer. The Petitioner further states that, at the end of each month, the Fire Chief signs all of the bills, including those for the additional firefighters and EMTs, and sends them to the Board of Fire Commissioner for approval of payment. Given this set of facts, the Petitioner asks whether the Code of Ethics prohibits him from signing his sons “pay-on-call” sheets as a result of either or both of them responding to an emergency situation. 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 person within his family, 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 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 or her family” expressly includes “son.” Regulation 1.3.1(A)(2). The Ethics Commission has issued numerous advisory opinions applying the nepotism provisions of the Code of Ethics to fact patterns in which family members work in the same department and, more specifically, in the same fire department. In those advisory opinions, the Ethics Commission opined that, in non-emergency situations, a public official or employee serving in a supervisory capacity will satisfy the requirements of the nepotism provisions of the Code of Ethics by recusing from participation in matters directly affecting his or her family member. However, the Ethics Commission has also consistently opined that, during emergency situations, such as fighting fires, in which incident specific supervision of a subordinate family member is unavoidable, a violation of the Code of Ethics will not exist by virtue, of the public official or employee’s unavoidable service in a supervisory capacity. For example, in Advisory Opinion 2016-26, the Ethics Commission opined that a Lieutenant in the East Greenwich Fire Department would not violate the Code of Ethics during discrete emergency situations, such as fighting fires, where incident-specific supervision of his brother might be unavoidable. See also A.O. 2010-40, A.O. 2009-34; A.O. 2009-26 (each opining that a violation of the Code of Ethics would not occur during emergency situations, such as fighting fires, in which incident specific supervision of a subordinate family member by a public official was unavoidable). Here, in an emergency situation where additional help is needed, a superior officer, often times the Petitioner, is required to sign a “pay-on-call” sheet in order for the additional firefighter or EMT to be paid for the services he or she has provided after responding to a page. Furthermore, the Petitioner represents that he is not involved in the selection of the additional firefighter or EMT, because the Fire Department pages all firefighters and EMTs and, if more than necessary respond, then those firefighters and EMTs decide among themselves who will stay and provide the services. Based on the Petitioners representations, the applicable provisions of the Code of Ethics, and the review of the prior advisory opinions, it is the opinion of the Ethics Commission that, in the particular emergency situations described in which incident specific supervision of his son or sons is unavoidable, and the Petitioner is required to sign a “pay-on-call” sheet for one or both of his sons, a violation of the Code of Ethics will not exist. 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(d) 520-RICR-00-00-1.3.1 Prohibited Activities - Nepotism (36-14-5004) Related Advisory Opinions: A.O. 2016-26 A.O. 2010-40 A.O. 2009-34 A.O. 2009-26 Keywords: Family: public employment Family: supervision Nepotism [1] The Petitioner states that he has not applied for the position of Chief.