Advisory Opinion No. 2021-16 Rhode Island Ethics Commission Advisory Opinion No. 2021-16 Approved: March 2, 2021 Re: Colonel Mark A. Knott QUESTION PRESENTED: The Petitioner, the Interim Town Manager for the Town of West Warwick, a municipal appointed 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 his spouse’s employment as the Solid Waste/Recycling Coordinator for the Town of West Warwick. 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 Interim Town Manager for the Town of West Warwick, a municipal appointed position, from conflicts of interest relating to his spouse’s employment as the Solid Waste/Recycling Coordinator for the Town of West Warwick. In October of 2020, the Petitioner was appointed by the Town of West Warwick (“Town” or “West Warwick”) Town Council (“Town Council”) to the position of Interim Town Manager after the contract of the previous Town Manager was not renewed by the Town Council. At that time, the Petitioner was – and still is – West Warwick’s Chief of Police.[1] The Petitioner explains that, although he was originally only expected to serve in the position of Interim Town Manager until February of 2021, by which time it was expected that the Town Council would have hired a new Town Manager, he is now considering applying for the position himself. The Petitioner adds that, in the event that he is selected by the Town Council to become the Town Manager, he will immediately resign as the Chief of Police. The Petitioner states that his spouse has been employed by the Town as its Solid Waste/Recycling Coordinator for the past six years. He further states that his spouse works part-time, twenty-five hours per week, and is not a member of any union. The Petitioner represents that his spouse is supervised by both the Director and the Assistant Director of the Town’s Department of Public Works, adding that the Director of Public Works reports to the Town Manager, as do all other Town department heads. The Petitioner further represents that, in his capacity as Town Manager, Interim or otherwise, while not involved in the day-to-day supervision of his spouse, the possibility exists that he could be called upon to resolve a dispute concerning the level of discipline offered by the Director of the Department of Public Works in response to an event related to the performance by his spouse of her public duties in the event that it cannot be resolved by the Town’s Personnel Director. The Petitioner states that, in anticipation of such a possibility when he became the Interim Town Manager, he asked the Town Council President to address any such disputes, adding the Town Council President agreed to do so. The Petitioner states that the Town Manager and the Town Finance Director are tasked with the preparation of the Town budget each year. He further states that he is prepared to recuse from participating in any discussion or decision-making relative to a budgetary line item that would address or affect his spouse’s employment, compensation, or benefits, in which case responsibility for such matters would then lie with the Town’s Finance Director. It is in the context of these facts that the Petitioner seeks the guidance of the Ethics Commission regarding whether the alternate supervisory chain of command established by the Petitioner is sufficient to insulate the Petitioner from conflicts of interest arising out of his position as Town Manager, Interim or otherwise, given that his spouse is employed as the Town’s Solid Waste/Recycling Coordinator. 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 public official or 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 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 person subject to the Code of Ethics may not participate 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 participant or party in such matter, or will derive a direct monetary gain, suffer a direct monetary loss, or obtain an employment advantage. Further, 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). Finally, a public official is prohibited 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.” Regulation 1.3.1(B)(3)(a). The phrase “any person within his [] family” expressly includes “spouse.” 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 2021-5, the Ethics Commission opined that the Chief of the Lime Rock Fire Department, whose son-in-law was employed as a firefighter in the department, would not violate the Code of Ethics if he adhered to a particular proposed alternate chain of command. Specifically, the petitioner represented that in the event that a particular lieutenant or captain in charge during any given shift was required to report any personnel matters involving the petitioner’s son-in-law, said matters would be reported directly to the Chairperson of the Lime Rock Board of Fire Commissioners for review and decision, rather than to the petitioner. Also, in Advisory Opinion 2020-48, the Ethics Commission opined that the Deputy Chief of the Johnston Police Department, whose spouse was employed as the Administrative and Payroll Clerk for the department, would not violate the Code of Ethics if he adhered to a particular proposed alternate chain of command. Specifically, the petitioner represented that rather than report to the petitioner relative to any matters relating to her duties, responsibilities, and requests for time off, the petitioner’s spouse would instead report directly to the Chief regarding all such matters and, in the event of the Chief’s unavailability, to the Mayor’s Chief of Staff, who was responsible for the supervision of all Department Heads in the Town of Johnston. 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 if he adhered to a proposed alternate chain of command wherein the Chief 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 the son’s designated supervisor regarding all administrative matters such as the scheduling of work shifts and disciplinary actions.) Here, the Petitioner has likewise proposed an alternate chain of command under which he would be removed from involvement in any potential disciplinary matters relating to his spouse’s employment, with said matters to instead be brought before the Town Council President. Accordingly, based on the facts as represented, a review of the applicable provisions of the Code of Ethics, and consistent with advisory opinions previously issued, it is the opinion of the Ethics Commission that the chain of command outlined by the Petitioner wherein any potential disciplinary matters relating to his spouse’s employment would be brought before the Town Council President instead of the Petitioner is reasonable and sufficient to insulate the Petitioner from apparent conflicts of interest regarding his spouse’s employment. Additionally, the Petitioner’s representation that he will recuse from participating in any discussion or decision-making relative to a budgetary line item that would address or affect his spouse’s employment, compensation, or benefits, is consistent with his obligations under the Code of Ethics. When recusing, the Petitioner must complete a statement of conflict of interest consistent with the provisions of section 36-14-6. Finally, the Petitioner is advised to remain vigilant in identifying and avoiding additional conflicts of interest involving his spouse that may arise while he is serving in the capacity of Town Manager, be it on an interim or more permanent basis, and is encouraged to seek further guidance from the Ethics Commission as needed. 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. 2021-5 A.O. 2020-48 A.O. 2010-40 Keywords: Alternate Chain of Command Conflict of Interest Nepotism [1] The Petitioner states that, immediately following his appointment to the position of Interim Town Manager, he appointed an Acting Chief of Police. The Petitioner further states that the Acting Chief of Police is presently responsible for handling all duties formerly performed by the Petitioner in the role of Chief, with the exception of responsibilities associated with the Police Department’s budget.