Advisory Opinion No. 2020-37 Rhode Island Ethics Commission Advisory Opinion No. 2020-37 Approved: September 22, 2020 Re: Michael W. Shea QUESTION PRESENTED: The Petitioner, the Superintendent of the Highway Department for the Town of New Shoreham, a municipal employee position, requests an advisory opinion regarding whether the proposed alternate supervisory chain of command is sufficient to insulate the Petitioner from conflicts of interest relating to the Town Manager’s intent to hire the Petitioner’s son as a laborer for the Highway Department. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the proposed alternate supervisory chain of command is sufficient to insulate the Petitioner, the Superintendent of the Highway Department for the Town of New Shoreham, a municipal employee position, from conflicts of interest relating to the Town Manager’s intent to hire the Petitioner’s son as a laborer for the Highway Department. The Petitioner is the Superintendent of the Highway Department for the Town of New Shoreham, also known as Block Island (“Town” or “Block Island”). He explains that the Highway Department currently consists of five employees, including himself, a Highway Supervisor, and three laborers. The Highway Department is responsible for the maintenance of Town and State roads, buildings, and properties, including beaches, parks, and cemeteries. The Petitioner represents that the type of work performed by the Highway Department is dictated by the season. He identifies among his personal duties responding to telephone calls from Town residents regarding matters such as fallen trees that need to be removed from roads and coordinating with other various Town departments that may require assistance with tasks such as transporting goods from the ferry to a particular destination in Town. The Petitioner states that he is also personally responsible for the operation of one of the nine cemeteries on Block Island.[1] The Petitioner further states that he has no hiring or firing authority over any of his subordinates, as such duties are the sole responsibility of the Town Manager, who also serves as the Public Works Director. The Petitioner informs that he meets each morning with all of the members of the Highway Department to let them know about any recent inquiries that he may have received and to lay out the tasks that need to be performed either that day or throughout the week. He represents that all such tasks are then assigned to the members of the team by the Highway Supervisor, who then supervises the team members performing those tasks. The Petitioner states that the Town Manager’s office recently advertised openings for two union laborer positions within the Highway Department. He explains that the openings were initially advertised for one week just to the members of Council 94, the Town of New Shoreham Employee Association, which includes Town employees from all of the Town departments. After receiving no applications from the members of Council 94, the positions were next advertised for two weeks in the local newspaper. The Petitioner represents that the Town received applications from only two candidates, neither of whom were members of the union, both of whom were qualified, and one of whom has been already hired. The other candidate is the Petitioner’s son, whose hiring as a fourth laborer in the Highway Department is pending. The Petitioner states that he did not participate in creating the job description for the laborer positions advertised, or in the selection process of either applicant, reiterating that those duties lie solely with the Town Manager/Public Works Director. The Petitioner expressed the general difficulty in finding qualified competent applicants for many Town positions because of the limited number of people, shortage of affordable housing, and competing salaries within the construction trade on Block Island. Cognizant of the nepotism provisions of the Code of Ethics, the Town Manager has created an alternate supervisory chain of command that will remove the Petitioner from any supervisory responsibilities or other involvement relative to his son if his son is hired by the Town. According to the proposed alternate chain of command, the Petitioner’s son would report directly to the Highway Supervisor, just as he would in the regular chain of command; however, the Highway Supervisor would report any personnel matters involving the Petitioner’s son directly to the Town Manager for review and decision, rather than first reporting such matters to the Petitioner. The Petitioner states that, ordinarily the supervision of the laborers is performed by the Highway Supervisor, who would report any personnel matters to the Petitioner; the Petitioner, in turn, would make recommendations on such matters to the Town Manager/Public Works Director, who is the final decision-maker. The Petitioner represents that, should his son be hired, the Petitioner will recuse completely from any and all matters relating to his son’s employment by the Town. Given this set of facts, the Petitioner seeks the guidance of the Ethics Commission regarding whether the alternate supervisory chain of command established by the Town Manager is sufficient to insulate the Petitioner from conflicts of interest arising out of his position, given his son’s proposed hiring within the same department. 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 public employee has reason to believe or expect that he or any member of 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 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 person subject to the Code of Ethics 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 person subject to the Code of Ethics 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 approving an alternate chain of command in analogous situations involving family members working in the same department. For example, in Advisory Opinion 2010-40, the Ethics Commission opined 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 if he adhered to a proposed alternate chain of command. In particular, the Chief represented that he would recuse 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. See also A.O. 2016-26 (opining that a lieutenant in the East Greenwich Fire Department was not prohibited 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 brother) . Contra A.O. 2008-54 (opining that the son of the Chief of the Saylesville Fire District 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). Here, the Petitioner represents that he did not participate in creating the job description for the laborer position, or the decision to hire his son, which is outside of his designated authority as Superintendent. The authority to hire a laborer for the Highway Department lies solely with the Town Manager/Director of Public Works. Further, the Town Manager/Director of Public Works has arranged for the Highway Supervisor to report any personnel matters involving the Petitioner’s son directly to the Town Manager rather than to the Petitioner. Accordingly, based upon the Petitioner’s representations, the alternate supervisory chain of command proposed by the Town Manager, the application of the Code of Ethics, and consistent with prior advisory opinions issued, 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 involving his son. The Petitioner is strongly cautioned, however, to remain vigilant in identifying and avoiding additional conflicts of interest that may arise under the circumstances. Regulation 1.3.1 requires the Petitioner’s recusal from decisions that impact his son’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 Ethics Commission as needed. Recusal shall be consistent 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. 2016-26 A.O. 2010-40 A.O. 2008-54 Keywords: Nepotism Recusal [1] The Petitioner explains that, of the nine cemeteries on Block Island, eight of them are purely historical for which the Highway Department conducts only maintenance such as mowing. The Highway Department does not mow the cemetery for which the Petitioner is responsible for selling plots and coordinating burials, as the Town hires a contractor to perform such services.