Advisory Opinion No. 2021-5

Rhode Island Ethics Commission

Advisory Opinion No. 2021-5

Approved: January 12, 2021

Re:  Timothy Walsh (2)

QUESTION PRESENTED:

The Petitioner, the Chief of the Lime Rock Fire Department, 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, given that his son-in-law is employed as a firefighter within the Fire 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 Chief of the Lime Rock Fire Department, a municipal employee position, from conflicts of interest, given that his son-in-law is employed as a firefighter within the Fire Department. 

The Petitioner is the Chief of the Lime Rock Fire Department (“Fire Department”), having been hired in 2015 by its Board of Fire Commissioners.  He cites among his duties as Chief: responsibility for the safety of the members of the Fire Department and the taxpayers of the Lime Rock Fire District, and the day-to-day operations of the Fire Department.  The Petitioner identifies the chain of command within the Fire Department as follows: The Chief, under whom two (2) captains serve; six (6) lieutenants who report to the captains; and sixteen (16) firefighters who report to the particular lieutenant or captain who is in charge during any given shift.  The Chief informs that he is not involved with the contractual employment of the firefighters or the scheduling of their shifts, including overtime, adding that shift selection is subject to a bid process through the firefighters’ union.  The Petitioner further informs that he is regularly involved with disciplinary and meritorious service matters involving the firefighters.

The Petitioner states that, in November of 2020, one of the firefighters within the Fire Department married the Petitioner’s daughter and became the Petitioner’s son-in-law.[1]  Cognizant of the nepotism provisions of the Code of Ethics, the Petitioner has created an alternate supervisory chain of command that will remove the Petitioner from any supervisory, disciplinary, or other responsibilities or involvement relative to his son-in-law’s employment as a firefighter.  Pursuant to the proposed alternate chain of command, the Petitioner’s son-in-law would report directly to the particular lieutenant or captain in charge during any given shift, just as he would in the regular chain of command; however, the particular lieutenant or captain in charge would report any personnel matters involving the Petitioner’s son-in-law directly to the Chairperson of the Board of Fire Commissioners for review and decision, rather than to the Petitioner.   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 Petitioner is sufficient to insulate the Petitioner from conflicts of interest arising out of his position as Chief, given that his son-in-law is a firefighter in the same Fire Department.

Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, 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 occurs if the public official has reason to believe or expect that he, any person within his family, his business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity.  Section 36-14-7(a).  Nor may a public official use his office for pecuniary gain, other than as provided by law, for himself, any person within his family, his employer, his business associate, or any business that he represents.  Section 36-14-5(d). 

The Code of Ethics further provides that no public official shall 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 party to or participant in such matter, or will derive a direct monetary gain, suffer a direct monetary loss, or obtain an employment advantage as a result.   Commission Regulation 520-RICR-00-00-1.3.1(B)(1) Prohibited Activities - Nepotism (36-14-5004) (“Regulation 1.3.1”).  Also, 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 definition of “any person within [a public official’s] family” specifically includes “son-in-law.” Regulation 1.3.1(A)(2). 

The Ethics Commission has issued a number of advisory opinions approving an alternate chain of command in analogous situations involving family members working in the same fire 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  pursuant to which the petitioner would  recuse from participation in supervisory matters involving his son and, instead, the Chairman of the Board of Fire Wardens would become the son’s designated supervisor regarding all administrative matters such as the scheduling of work shifts and disciplinary actions.  See also A.O. 2009-34 (opining that the Chief of the West Warwick Fire Department was not prohibited from serving in that position were his son-in-law to be a successful candidate for a firefighter position within the same department, provided that certain procedures were followed so that the petitioner was removed from personnel decisions or other matters that particularly affected his family member). 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 existed or was proposed to insulate the Fire Chief from apparent conflicts of interest).

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 which requires the Petitioner to recuse from any decisions that may financially impact his son-in-law (including, but not limited to, supervision, evaluation, work assignment, promotion, transfer and discipline) is reasonable and sufficient to insulate the Petitioner from apparent conflicts of interest.  As we have noted in prior advisory opinions, during discrete emergency situations, such as fighting fires where incident-specific supervision of his son-in-law may be unavoidable, the Ethics Commission finds that a violation of the Code of Ethics will not exist.  The Petitioner is strongly cautioned, however, to remain vigilant in identifying and avoiding additional conflicts of interest that may arise in non-emergency situations.  The Petitioner is encouraged to seek further guidance from the Ethics Commission as needed.  Finally, when recusing, the Petitioner must complete a statement of conflict of interest consistent with the provisions of 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. 2010-40 
A.O. 2009-34             
A.O. 2008-54 
              
Keywords: 
    
Alternate Chain of Command            
Nepotism

 [1] The Petitioner states that his son-in-law had been a firefighter within the Fire Department for approximately five (5) years before his marriage to the Petitioner’s daughter.