Advisory Opinion No. 2000-59

Re: J. David Smith

QUESTION PRESENTED

The petitioner, the Westerly Chief of Police, a municipal appointed position, requests an advisory opinion as to whether a conflict of interest would arise if his spouse, currently the Executive Assistant to the Westerly Town Manager, a municipal employee position, were to accept various employment positions with the Town of Westerly.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner’s spouse from accepting employment within the Town of Westerly as the Administrative Assistant to the Director of Public Works, the Human Resource Coordinator, the Assistant to the Finance Director for Payroll Data Entry or the Assistant to the Finance Director for the School Department while the petitioner serves as the Westerly Police Chief. While the Code of Ethics prohibits public officials and employees from participating in particular employment matters involving their family members, in this instance, neither his spouse’s current position nor any of the positions which she may be offered would place her in a position to impact his employment.

The petitioner’s spouse has served as the Executive Assistant to the Westerly Town Manager for fourteen years. On May 6, 2000, the Town Manager appointed the petitioner as the Westerly Chief of Police. He advises that his spouse recused herself from participation in matters relating to the selection process for the Chief of Police, such as scheduling interviews. He indicates that, based upon a perceived conflict of interest between their respective positions, the Town may offer her alternate employment as the Administrative Assistant to the Director of Public Works, the Human Resource Coordinator, the Assistant to the Finance Director for Payroll Data Entry or the Assistant to the Finance Director for the School Department.

Under the Code of Ethics, a public official may not participate in any matter in which he or she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his or her duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). An official will have an interest in substantial conflict with his or her official duties if he or she has a reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s actions, to the official, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a). Also, a public official or employee may not use his or her public position to obtain financial gain, other than that provided by law, for himself or herself or any member of his or her 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 supervising or having any significant involvement in decisions concerning reappointment, promotion, or reclassification of a family member. In previous advisory opinions, the Commission has concluded that public officials and employees may work for the same public agency or entity as other family members. Where public officials and employees serve in a department or agency in which another family member has supervisory responsibilities, the Commission has found that the requirements of the State’s Code of Ethics will be satisfied if 1) the official or employee serving in a supervisory capacity recuses from participation in matters directly affecting his or her family member and 2) the department or agency establishes a system whereby the official or employee has no involvement in employment or personnel decisions affecting his or her family member. See e.g. A.O. 96-109 and A.O. 96-118.

In this instance, the petitioner and his spouse serve in separate departments within the Town of Westerly, each with distinct spheres of responsibility. Although the Town Manager is the appointing and supervising authority for both the Chief of Police and the Executive Assistant to the Town Manager, neither of these positions exercises any supervisory authority or control over the other. Nor is either the petitioner or his spouse in a position to financially impact the other’s employment. Further, the petitioner’s spouse recused herself from any involvement in the selection process for his position. The fact that both the petitioner and his spouse are the Town Manager’s subordinates does not, absent some other factors, present a conflict of interest under the Code of Ethics.

Similarly, if the petitioner’s spouse wishes to accept other employment within the Town of Westerly, no conflict of interest would arise if she were to be employed as the Administrative Assistant to the Director of Public Works, the Human Resource Coordinator, the Assistant to the Finance Director for Payroll Data Entry or the Assistant to the Finance Director for the Westerly School Department. As with her current position, none of the foregoing positions involve the exercise of any supervisory authority or control over the Chief of Police, nor would she have the potential to financially impact the petitioner’s employment. However, in the event that the petitioner’s spouse is required to take official action (as opposed to ministerial tasks) that may financially impact her spouse, she must exercise the Code’s recusal provision. Notice of recusal should be filed with both the Ethics Commission and the Town of Westerly in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-6
36-14-7(a)

Related Advisory Opinions:

2000-42
2000-20
2000-5
99-147
99-131
99-73
99-47
98-132
98-122
98-119
98-115
98-106
97-140
97-10
96-78
96-45
96-32
96-118
96-109
96-16
96-4
95-71
95-46
95-45
94-16
GCA 1

Keywords:

Family: public employment
Nepotism