Advisory Opinion No. 2000-42

Re: A. Ralph Mollis

QUESTION PRESENTED

The Town Solicitor requests an advisory opinion on behalf of the petitioner, the Mayor of North Providence, a municipal elected position, as to whether the Mayor's son may participate in a summer program in which youths are hired to assist various municipal departments under the direction of mayoral appointees.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Mayor’s son from being hired for the City’s summer program provided that 1) all applicants are accepted into the program; 2) the petitioner does not supervise or in any way participate in the supervision of the youths in the program; and 3) the petitioner’s son is not afforded any preferential treatment in terms of pay, assignment, or period of employment that is not provided to every other applicant in the program.

The Code of Ethics provides that a public official may not have a substantial conflict of interest in performing his/her public duties. 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 this matter, the Town Solicitor represents that North Providence has sponsored a summer program for the past fifteen years including the “Oscar Program” where every applicant between the ages of 14 and 18 is hired to assist one of the Town's departments, but primarily the recreation department. The Town Solicitor advises that the Town has never turned down an application from a parent whose child is between those ages. The applications are reviewed by the Planning Director, but youths will work under the direct control of a particular department head. The Planning Director is the supervisor for the Oscar Program and the Clean Up Program, but he assigns the applicants to individual departments, with the head of each department responsible for supervising the youths. If a youth is over the ages of 16, he/she also may work for the Recreation Director.

The Recreation Director and the Department Heads are appointed by the Mayor and work under his direction. The Mayor does not take an active roll in the summer programs except for ceremonial activities.

The Commission has previously considered the summer employment of a family member in a slightly different context. In In re: Richard J. Travers, Complaint No. 93-84, while the Respondent, Recreation Director, did not participate in the hiring of his daughter (performed by Recreation Board), he had ultimate supervisory responsibilities for his daughter and signed off on his daughter’s requests for reimbursement of work expenses in violation of Section 5(a) of the Code.

This matter is different than that presented above in that the Mayor will not have any supervisory responsibilities as to the program. See also A.O. 99-47(advising Mayor that he could appoint cousin to position of Assistant Mechanic since he has no involvement in the selection/hiring process; 2) he does not directly supervise the Assistant Mechanic or his immediate superior; and 3) any approval by the petitioner would be ministerial in nature). Here as well, the Mayor has supervisory and appointment authority over the Department Directors and Heads. We conclude, however, that his supervision of those persons in this instance does not create a substantial conflict of interest under the Code of Ethics for the following reasons: 1) all applicants are hired into the summer program, and have since its inception fifteen years ago; 2) applicants receive the same stipend and are subject to basically the same work requirements; and, 3) the program is of limited duration, running only for the summer months. We conclude, therefore, that the Code of Ethics does not prohibit the petitioner’s son from applying or working in the summer program provided 1) all applicants are accepted into the program; 2) the petitioner does not supervise or in any way participate in the supervision of the youths in the program; and 3) the petitioner’s son is not afforded any preferential treatment in terms of pay, assignment, or period of employment that is not provided to every other applicant in the program.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-7(a)
36-14-5005

Related Advisory Opinions:

GCA 1
99-47

Keywords:

Family: Public Employment
Nepotism