Advisory Opinion No. 2021-7

Rhode Island Ethics Commission

Advisory Opinion No. 2021-7

Approved: January 12, 2021

Re:  Erica Vieira

QUESTION PRESENTED:

The Petitioner, the Administrative and Payroll Clerk for the Johnston Police Department, a municipal employee position, requests an advisory opinion regarding what restrictions, if any, the Code of Ethics places upon her, given that her spouse is the Deputy Chief of the Johnston Police Department. 

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Administrative and Payroll Clerk for the Johnston Police Department, a municipal employee position, may carry out her current duties without running afoul of the Code of Ethics, notwithstanding that her spouse is the Deputy Chief of the Johnston Police Department, given the Petitioner’s representation that she has no discretionary decision-making authority that would allow her to use her position to benefit her spouse’s financial interests nor any supervisory authority over her spouse.

The Petitioner represents that she has been employed by the Johnston Police Department (“Police Department” or “Department”) for fifteen years and has served as its Administrative and Payroll Clerk since October of 2019.  The Petitioner states that the Administrative and Payroll Clerk is a civilian employee position with responsibilities over:

  • the recording, filing, and maintenance of all daily absences and extended leave for all Department personnel including, but not limited to, sick leave, vacation time, personal time, compensatory time, overtime, injury on duty, job related illnesses, bid awards, and promotions;
  • the update and maintenance of all computer and manual files concerning Department personnel records for each individual including any and all financial and personal changes; and
  • the processing and maintaining of all health and dental benefits for all Department personnel. 

The Petitioner states that no Department employees report directly to her and, thus, she has no supervisory role in the Department.  She further states that any payroll and employee time records or accruals recorded by her must receive final approval by the Chief of Police.   

The Petitioner represents that her spouse was appointed Deputy Chief of the Police Department on August 28, 2020, after the former Deputy Chief, Joseph P. Razza, was appointed Chief (“Chief Razza”).  Upon his appointment as Chief, Chief Razza issued a Special Order to all Department personnel stating that, effective immediately, the Petitioner would report directly to Chief Razza, rather than to her spouse, the Deputy Chief, 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, in the event that Chief Razza is unavailable, the Petitioner will be supervised by the Mayor’s Chief of Staff, who is responsible for the supervision of all Department Heads.  In a telephone conversation with Commission Staff, Chief Razza explained that the Petitioner is responsible for recording the data received from Department employees relative to their overtime, which is confirmed by the employees’ supervisor(s) prior to recording the data.  Thereafter, overtime data is reviewed and authorized for payment by Chief Razza, who in turn forwards the data to the payroll department at Town Hall to be entered into the Town’s payroll system without the Petitioner’s involvement. 

The above-described alternate supervisory chain of command designed to insulate Deputy Chief Vieira from any conflicts of interest arising from the Petitioner’s position within the same Department was approved by the Ethics Commission on December 8, 2020, through the issuance of Advisory Opinion 2020-48 to Deputy Chief Vieira.  Advisory Opinion 2020-48 did not address any potential conflicts of interest that might arise for the instant Petitioner while performing her official duties as Administrative and Payroll Clerk, when such duties may impact or involve her spouse.  The Petitioner was advised to seek her own guidance from the Ethics Commission.  Given this set of facts, the Petitioner asks what restrictions, if any, the Code of Ethics places upon her in performing her public duties.

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 her 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 she or any family member, among others, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity.  Section 36-14-7(a).  Also, a public employee may not use her public position to obtain financial gain, other than that provided by law, for herself or any member of her 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 her public duties if “any person within [] her 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 her 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 [] her family” expressly includes “spouse.”  Regulation 1.3.1(A)(2).

In the instant matter, the Petitioner represents that her duties as the Administrative and Payroll Clerk are limited in nature, and that she has no supervisory authority over other Department employees, including her spouse.  She further represents that she does not exercise any decision-making that has the potential to financially impact her spouse; rather, her duties are ministerial and must further be approved by Chief Razza.  See A.O. 2008-17 (opining that the Finance Director for the Town of Lincoln did not violate the Code of Ethics by processing payments for the Town’s legal notices that were carried in a newspaper owned by his brother, given that the petitioner’s duties did not involve selecting the newspaper, but only required him to process the payment vouchers that had been approved by the Town Administrator and the Town Council and, as such, the Finance Director’s actions were ministerial in nature and did not involve the exercise of any discretionary authority that could affect the financial interests of his brother); A.O. 2003-69 (opining that a Mail Ballot Clerk for the City of East Providence Board of Canvassers, whose position was ministerial only and did not involve exercising any discretionary authority that could affect the candidacy of her spouse, a potential candidate for a seat on the East Providence City Council, had no ability to use her position to benefit her spouse, but should exercise diligence in identifying any actions that she might be asked to take that would involve discretionary authority as to the election process and should recuse herself from participation on any matters relating to, or affecting the candidacy of, her spouse and/or other City Council candidates). 

Accordingly, based on the Petitioner’s representations, and consistent with the applicable provisions of the Code of Ethics and prior advisory opinions issued, it is the opinion of the Ethics Commission that the Petitioner may carry out her current duties as Administrative and Payroll Clerk without running afoul of the Code of Ethics, notwithstanding that her spouse is Deputy Chief in the same Department.  The Petitioner is cautioned, however, that should her duties enlarge or change to include any discretionary decision-making role or authority in regard to her spouse, she should either recuse, consistent with section 36-14-6, from participation in such action and/or request further 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. 2008-17
A.O. 2003-69

Keywords
Nepotism
Family: Public Employment