Advisory Opinion No. 2000-5

Re: Ernest Julian, Ph.D., Chief

QUESTION PRESENTED

The petitioner, the Chief of the Office of Food Protection at the Department of Health (DOH), a state employee position, requests an advisory opinion as to whether management procedures put in place with regard to his fiancee, whose employment position at the DOH is subordinate to his, are sufficient under the Code of Ethics.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, the Chief of the Office of Food Protection at the Department of Health, a state employee position, from serving in that position while his fiancee and soon to be spouse (hereinafter “spouse”) serves in a subordinate position in the Office provided that certain procedures are followed so that the petitioner nor his subordinates take action on personnel matters or matters that particularly affect his spouse financially. While the Code of Ethics prohibits public officials and employees from participating in particular employment matters involving their family members, in this instance the supervisory procedures fashioned by the Department of Health effectively insulate the petitioner from public employment decisions directly affecting his spouse or engaging in any employment or transaction which is in substantial conflict with the proper discharge of his duties in the public interest.

The petitioner is the Chief of the Office of Food Protection within the Division of Environmental Health at the Rhode Island Department of Health (DOH). He is engaged to be married to a Senior Environmental Health Food Specialist within his Office, a position which is subordinate to his own in the DOH. There currently are two levels of supervisors between him and his spouse. The DOH has established procedures with regard to the petitioner’s spouse’s supervision. Personnel matters relating to his spouse will simply be reported by Mr. Lee, Chief Environmental Health Food Specialist, to Dr. Combs, the petitioner’s supervisor, who will make all personnel decisions regarding the petitioner’s spouse. All emergency overtime is allocated based upon seniority. Scheduled overtime is also allocated on a rotational basis based on seniority.

A substantial conflict of interest exists if the official or employee has reason to believe or expect that he or any family member will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. R.I. Gen. Laws §§ 36-14-5(a), 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 immediate family. R.I. Gen. Laws § 36-14-5(d).

In General Commission Advisory (GCA) No. 1, the Commission applied and interpreted these provisions to specific nepotism concerns. In that opinion, the Commission recognized that the cited provisions would prohibit a public official or employee from participating in personnel decisions regarding another family member. Specifically, the Commission recognized in GCA No. 1 that, in addition to hiring decisions, the public official or employee would be prohibited from having any significant involvement in decisions concerning reappointment, promotion, or reclassification of a family member. This necessarily includes job performance evaluations since they play a role in job retention, promotion, and other job-related benefits of financial interest to the employee. Additionally, in GCA No. 1, the Commission found that, not only is the public official or employee prohibited from participating in personnel decisions affecting his family member, he is also prohibited from delegating this authority to a subordinate since "the official is in a position to choose and influence the person most likely to favor [his] family member."

In a series of advisory opinions since the issuance of GCA No. 1, the Commission has considered whether, in light of the relevant Code provisions and GCA 1, particular public officials or employees would be able to work for the same public agency or entity as other family members. The Commission has declined to adopt a blanket or absolute prohibition against one family member serving in a department or agency in which another family member has supervisory responsibilities. Rather, the Commission generally has taken the position that a public official or employee serving in a supervisory capacity will satisfy the requirements of the State’s Code of Ethics by recusing from participation in matters directly affecting his/her family member.

In Advisory Opinion 95-71, the Commission recognized that the practicality of achieving this objective may pose a problem since recusal on all relevant issues would require an individual from an unrelated department to make such decisions. Additionally, if the public official recuses on a routine or frequent basis, he may be in violation of Commission Regulation 36-14-5003. Also, recusal in and of itself may not be sufficient because the existing structure of a department necessarily places the family members within the same chain of organizational command. In light of these practical concerns, the Commission recognized that another alternative would be to establish a system within the department or agency that would serve the purpose of insulating the official from all issues directly affecting his family member. To accomplish this end, a procedure must be fashioned so that the public official has no involvement in employment or personnel decisions affecting his/her family member. See A.O. 95-71 (opining that the Code of Ethics does not prohibit the Rhode Island Department of Transportation from promoting an individual to the position of Assistant Director of Transportation (Real Estate) where a direct subordinate of her husband would be her immediate supervisor if it established an adequate "Chinese Wall" between the supervisor and the subordinate employee).

Previously, the Commission has considered whether a department or agency had established sufficient procedures to insulate a public official from decisions affecting a member of his family. In opinions issued to the Director of Administration for the City of Cranston and the Secretary of State, respectively, we found that both administrators had devised sufficient hiring and supervisory procedures to insulate the interested public officials from employment decisions affecting their family member. Therefore, the Code of Ethics would not prohibit the City of Cranston or the Secretary of State's office from simultaneously employing both family members. See A.O. 96-109 (advising that the City of Cranston’s Director of Administration could accept appointment to that position where his spouse serves as the City's Purchasing Agent if he does not participate in the day-to-day supervision of his wife and all personnel issues affecting his spouse are handled by the Mayor or an official who does not report to the Petitioner as Director of Administration); A.O. 96-118 (concluding that the Code of Ethics did not prohibit the Secretary of State from hiring and employing the mother of his Chief of Staff since the Petitioner had devised both hiring and supervisory procedures that insulate the Chief of Staff from employment decisions that affected his mother); and A.O. 98-115 (finding that under the Code of Ethics URI could hire and/or employ the Head Coach’s son provided that the Head Coach would not take part in the hiring process, and if his son is hired, that the Athletic Director would assume all supervisory responsibilities relating to his son).

After considering the relevant provisions of the Code of Ethics and past advisory opinions, it is our opinion here that the Rhode Island Code of Ethics does not prohibit the petitioner from working as Chief of the Office of Food Protection while his spouse is a Senior Environmental Health Food Specialist. In reaching that conclusion we rely on the representations of the petitioner that procedures have been put in place by the Department of Health which provide that the petitioner nor his subordinates will take action on personnel matters or matters that particularly affect his spouse financially. Additionally, we note that the provisions for emergency and scheduled overtime which are allocated by seniority are sufficient to insulate the petitioner from potential conflicts of interest under the Code of Ethics. Finally, while the management procedure contains a method for handling performance issues with regard to his spouse’s subordinates, such procedures are not required under the Code of Ethics since those matters cannot reasonably forseeably financially impact his spouse.

Code Citations:

36-14-5(a)
36-14-7(a)

Related Advisory Opinions:

GCA 1
99-131
98-115
97-140
97-6
96-118
96-110
96-109
96-16
95-71
95-45
92-56
91-32

Keywords:

Family: public employment
Family: supervision
Nepotism