Advisory Opinion No. 2020-48 Rhode Island Ethics Commission Advisory Opinion No. 2020-48 Approved: December 8, 2020 Re: Mark Vieira QUESTION PRESENTED: The Petitioner, the Deputy Chief of the Johnston Police Department, 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 the Administrative and Payroll Clerk for the Johnston Police Department. 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, the Deputy Chief of the Johnston Police Department, a municipal employee position, from conflicts of interest arising out of his new position, notwithstanding that his spouse is the Administrative and Payroll Clerk for the Johnston Police Department. On August 28, 2020, the Petitioner was appointed Deputy Chief of the Johnston Police Department (“Police Department” or “Department”), after the former Deputy Chief, Joseph P. Razza, was appointed Chief (“Chief Razza”). The Petitioner represents that his spouse, who has been employed with the Police Department for fifteen years, is currently serving as the Police Department’s Administrative and Payroll Clerk, a position with responsibilities over the recording, filing, and maintenance of all daily absences and extended leave for all Police Department personnel; the update and maintenance of all files concerning Department personnel; and the processing and maintaining of all benefits for all Department personnel. The Petitioner notes that his spouse has been the Administrative and Payroll Clerk for the past year, and that prior to it, she served as a dispatcher. During a telephone conversation with Commission Staff, Chief Razza stated that, during his three-year tenure as Deputy Chief, and pursuant to a normal supervisory chain of command, the Petitioner’s spouse reported to then Deputy Chief Razza and to the Operations and Training Division Commander, who is under the direct supervision of the Deputy Chief. Upon his appointment as Chief, Chief Razza issued a Special Order to all Department personnel stating that effective immediately the Petitioner’s spouse would report directly to Chief Razza regarding all matters relating to her duties and responsibilities, and also requiring that any time off requested by her be submitted to and approved by Chief Razza. Further, Chief Razza represents that, in the event that he is unavailable, supervision of the Petitioner’s spouse will be performed by the Mayor’s Chief of Staff, who is responsible for the supervision of all Department Heads. 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 new position. 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 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 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 provisions aimed at curbing nepotism. Pursuant to Regulation 1.3.1’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 [] 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 1.3.1(B)(1). More specifically, Regulation 1.3.1 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 1.3.1(B)(2). The phrase “any person within his [] family” expressly includes “spouse.” Regulation 1.3.1(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 2009-26, the Ethics 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 Ethics Commission determined that the recusal procedures and alternate chain of command structure approved by the Fire Chief and the Chairman of the Board of Fire Commissioners, whereby the Fire Chief would handle supervisory matters concerning the Deputy Chief’s nephew, were reasonable and sufficient to insulate the Deputy Chief 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 the 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). After considering the Petitioner’s representations and the alternate chain of command implemented by Chief Razza, the provisions of the Code of Ethics, and past advisory opinions issued, it is the opinion of the Ethics Commission that the alternate chain of command outlined by the Petitioner and implemented by Chief Razza is reasonable and sufficient to insulate the Petitioner from apparent conflicts of interest involving his spouse’s employment by the same police department. The Petitioner is strongly cautioned, however, to remain vigilant in identifying and avoiding any conflicts of interest that may arise given his position of authority over his spouse. Regulation 1.3.1 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 Ethics Commission as needed. Recusal shall be consistent with section 36-14-6. Finally, this advisory opinion does not address any potential conflicts of interest that may arise for the Petitioner’s spouse, while performing her official duties as Administrative and Payroll Clerk, and when such duties may impact or involve the Petitioner. The Petitioner’s spouse is advised to seek her own guidance from the Ethics Commission. 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. 2010-40 A.O. 2009-26 A.O. 2005-19 Keywords Nepotism Family: Public Employment Family: Supervision