Advisory Opinion No. 2000-89

Re: Mark Gunning

QUESTION PRESENTED

The petitioner, the Superintendent of Schools for the Narragansett School System, a municipal employee position, requests an advisory opinion on behalf of Mark B. Gunning, the Administrator for Special Services in the same system, also a municipal employee position, as to whether management procedures put in place with regard to his Mr. Gunning's sister, who recently was hired by the school system for a position within the department that her brother administers, 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 Narragansett School System from employing both Mr. Gunning and his sister in the same department, provided that certain procedures are followed so that neither Mr. Gunning nor any of his subordinates take action on personnel matters or matters that particularly affect his sister 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 Narragansett School System effectively insulate the petitioner from public employment decisions directly affecting his sister or engaging in any employment or transaction which is in substantial conflict with the proper discharge of his (or her) duties in the public interest.

The petitioner is the Superintendent of Schools for the Narragansett School System. He requests an advisory opinion on behalf of Mark B. Gunning, the Administrator for Special Services in the same system. Mr. Gunning is the brother of Mary Ellen Keiser, an applicant and now recent hire for a teaching position at Narragansett High School. Mr. Gunning was a member of the Selection Committee that reviewed applicants for the education resource position, but he did not participate in the interview, evaluation or ranking of his sister. His sister was not hired for the position for which she was interviewed, but was hired by the school district for another position. Mr. Gunning did not participate in that hiring decision.

As an administrator at the school Mr. Gunning would be in a position to supervise his sister as an employee of the school system. To address that possibility the School Superintendent, in conjunction with Mr. Gunning and other administrators at the high school, has determined that to the extent Mrs. Keiser would be in a position to be supervised by her brother, those responsibilities would instead be carried out by the High School Principal. All parties involved are amenable to that proposed solution.

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 prevent 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, the Commission has considered whether, in light of the relevant Code provisions and GCA 1, particular public officials or employees could 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, not under the public official's control, 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").

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 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 Mr. Gunning and Mrs. Keiser from working in the same school system, nor does it prohibit Mrs. Keiser from working in a department administered by her brother. In reaching that conclusion we rely on the representations of the petitioner that procedures have been put in place by the Narragansett School System that provide that neither the petitioner nor his subordinates will take action on personnel matters or matters that particularly affect his sister financially

Code Citations:

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

Related Advisory Opinions:

GCA 1
2000-5
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