Advisory Opinion No. 2001-35

Re: William R. Gardell

QUESTION PRESENTED

The petitioner, Chair of the Richmond Recreation Commission, a municipal appointed position, requests an advisory opinion as to whether the Recreation Commission may employ a mother and daughter in its Summer Recreational Program in the respective positions of Program Coordinator and Assistant Program Coordinator.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Richmond Recreation Commission from employing a mother and daughter in its Summer Recreational Program in the respective positions of Program Coordinator and Assistant Program Coordinator, provided that certain procedures are followed so that neither the Program Coordinator nor any of her subordinates take action on personnel or other matters that particularly affect her daughter financially.

The petitioner advises that the Richmond Recreation Commission publicly advertised the availability of various positions for its Summer Recreational Program. He indicates that the Recreation Commission received one application for each adult staff position advertised, with the exception of the Special Education Coordinator posting which received no response. A mother and daughter have submitted applications for the positions of Program Coordinator and Assistant Program Coordinator, respectively. He represents that the mother previously served as Program Coordinator for many years and last year the daughter served as the Assistant Coordinator.

The Code of Ethics provides that a public official or 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. A substantial conflict of interest exists if the official or employee has reason to believe or expect that she or any family member will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). Also, a public official or employee may not use her public position to obtain financial gain, other than that provided by law, for herself or any member of 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 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, 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 or 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. We have found that where administrators had devised sufficient hiring and supervisory procedures to insulate the interested public officials from employment decisions affecting their family members, the Code of Ethics would not prohibit the Department from simultaneously employing both family members. See A.O. 98-115 (concluding that URI could hire the basketball coach’s son since all supervision of the son would be handled by the Athletic Director); 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); A.O. 96-109 (advising that the 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).

We have concluded, however, that a family member should not be hired by a public entity if there were no alternative chain of command that would insulate the public official or employee from employment decisions affecting her family member. See A.O. 97-140 (opining that nephew of the North Smithfield Police Chief should not serve as an officer in the North Smithfield Police Department while his uncle served as Chief since, given the structure of the Police Department, there was no alternative chain of command that would insulate the Chief completely from supervisory responsibilities regarding his nephew); A.O. 97-6 (concluding that the Mayor of North Providence could not hire his cousin to serve as his Director of Personnel, a position that reported directly to the Mayor).

Based upon past advisory opinions and the provisions of the Code of Ethics, the Richmond Recreation Commission may employ two members of the same family in its Summer Recreational Program as Program Coordinator and Assistant Coordinator, provided that sufficient procedures are put in place by the Recreation Commission to provide that neither the Program Coordinator nor her subordinates will take action on personnel matters or matters that particularly affect her daughter financially. In this instance, the members of the Recreation Commission would be placed in the position of handling all matters relating to the assignment, evaluation and supervision of the Assistant Program Coordinator. The Program Coordinator is required to recuse herself from participating in all matters involving her daughter. Notice of recusal should be filed both with the Richmond Recreation Commission and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Finally, the law constrains the Commission to issue advisory opinions only as to prospective, not past, conduct.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-7(a)

36-14-6

Related Advisory Opinions:

2000-89

2000-81

2000-75

2000-59

2000-42

2000-16

2000-5

99-147

99-135

99-131

99-73

99-47

98-122

98-119

98-115

97-140

97-49

97-22

97-6

96-118

96-113

96-110

96-109

96-16

95-113

95-71

95-46

95-45

92-56

91-32

GCA 1

Keywords:

Family: public employment

Family: supervision

Nepotism