Advisory Opinion No. 2002-17

Re: Jan Luby

QUESTION PRESENTED

The Chair of the Commission on the Deaf and Hard of Hearing (CDHH) requests an advisory opinion on behalf of the CDHH, state appointed positions, as to whether a conflict of interest would arise if the spouse of the CDHH’s sole staff member and/or the President of the Rhode Island Association of the Deaf (RIAD) is appointed to the CDHH.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that no conflict of interest would arise if the Commission on the Deaf and Hard of Hearing (CDHH) staff member’s spouse is appointed to the CDHH, provided that he recuses from participation and/or vote in any matters pertaining to his spouse. Further, the Code of Ethics does not prohibit the President of the Rhode Island Association of the Deaf (RIAD) from accepting appointment to the CDHH, provided that as a member of the CDHH, she recuses herself from participation and/or vote on any matters which may financially impact the RIAD, her business associate under the Code of Ethics. Section 5(e) of the Code also prohibits her from appearing before the CDHH on the RIAD’s behalf for a period of one-year following the expiration of her term of office on the CDHH.

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. A substantial conflict of interest occurs if he or she has reason to believe or expect that he or she, any family member or business associate, or any business by which he or she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). The official prohibited from using his or her public position or confidential information received through his or her position to obtain financial gain, other than that provided by law, for himself or herself, a business associate or a family member. See R.I. Gen. Laws § 36-14-5(d). Section 5(f) of the Code requires the official to recuse from voting or otherwise participating in the consideration and/or disposition of a matter involving a business associate. See R.I. Gen. Laws § 36-14-5(f). Under R.I. Gen. Laws § 36-14-2(3), a “business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective.

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.

In Advisory Opinion 99-147, the Commission previously concluded that no violation of the Code of Ethics would arise if the CDHH appointed a new member who is married to a CDHH staff person, provided that the member recuses from participation and/or vote in matters pertaining to his spouse. The instant request involves the same staff member, who presently is the CDHH’s sole employee. However, the fact that she is the sole staff member does not change the scope of the earlier opinion. Her spouse must recuse from participation and/or vote in any matters involving her that come before him as a CDHH member. To the extent that the CDHH members serve as her supervisor, other CDHH members must handle all matters involving their fellow member’s spouse.

The Commission further has addressed the issue of CDHH members and employees who serve in leadership positions on non-profit boards. In Advisory Opinion 99-137, the Commission previous concluded that the Code of Ethics did not prohibit a CDHH member from also serving as the president of a local chapter of SHHH, an organization representing hard of hearing persons. There, the Commission opined that the member could continue to serve in both capacities provided that she recused herself from participation and/or vote on any CDHH matters that might financially impact SHHH, her business associate under the Code of Ethics. See also A.O. 99-138 (opining that a CDHH staff member may serve as Treasurer of the RIAD provided that she does not participate in any matters in her employment with the CDHH that may financially impact the RIAD, her business associate).

Accordingly, the Commission concludes that the President of the RIAD’s simultaneous service as an appointed member of the CDHH would not, in and of itself, present a conflict of interest under the Code of Ethics. However, the individual has a business association with that organization that triggers the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a), (d) and (f). In the event that matters specifically relating to the RIAD come before the CDHH, she must recuse herself from any participation and/or vote in connection with said matters. Notice of recusal should be filed with both the Ethics Commission and the Commission on the Deaf and Heard of Hearing in accordance with R.I. Gen. Laws § 36-14-6. Finally, pursuant to R.I. Gen. Laws § 36-14-5(e)’s revolving door prohibitions, she may not appear before the CDHH on the RIAD’s behalf for a period of one-year following the expiration of her term of office on the CDHH.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(d)

36-14-5(e)

36-14-5(f)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2001-49

2000-59

2000-16

2000-5

99-147

99-138

99-137

99-73

99-81

99-77

99-57

99-56

99-50

99-35

99-33

99-24

98-139

98-108

98-76

98-44

98-10

97-140

97-13

97-6

96-118

96-113

96-110

96-109

96-75

96-16

95-71

95-59

95-45

92-56

91-32

GCA 1

Keywords:

Business associate

Family: public employment

Nepotism

Non-profit boards

Revolving door